Friday, February 3, 2017

GRC calls Kean U.'s 18 extensions seeking a total of 170 days to respond to an OPRA "clearly excessive."

The Government Records Council (GRC) is usually very accommodating to custodians who do not grant or deny records within the Open Public Record Act's (OPRA) seven business-day response period, as long as the custodian seeks an extension within that seven business-day period. 

So, if a custodian, on the sixth business day after an OPRA request is received, requests an extension to reasonably close, certain date, the GRC will typically find that the custodian complied with the seven business-day requirement. Unfortunately, some public agencies, the Division of State Police, for example, frequently (if not always) request extensions thereby reducing OPRA's seven business-day response to a near nullity.

There are, however, limits to the number and duration of OPRA extensions.  In the GRC's December 13, 2016 decision in Luis Rodriguez v. Kean University, the Council's executive director wrote that "[a]lthough extensions are rooted in well-settled case law, the Council need not unquestioningly find valid every request for an extension containing a clear deadline." He also wrote that the GRC has held in the past that a "custodian could not lawfully exploit the process by repeatedly rolling over an extension once obtained."

According to the GRC's executive Director's Findings and Recommendations, the Council analyzes extension requests on what is "reasonably necessary."  In order to make that determination, the Council goes through a three-step process.  First, it looks at "complexity of the request as measured by the number of items requested, the ease in identifying and retrieving requested records, and the nature and extent of any necessary redactions."  Second, it considers the amount of time that the custodian has already had to respond to the request.  Finally, it considers any extenuating circumstances that would hinder the custodian's ability to respond.

Applying these considerations to Rodriguez's request to Kean University, the executive director found that Kean's eighteen extension requests that added up to 170 days to turn over 435 pages of material "was clearly excessive and flies in the face of OPRA's mandate to 'promptly comply' with a records request." 

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