In these uncertain times, New Jersey municipalities are working hard to maintain operations, which includes responding to requests under the state’s Open Public Records Act (“OPRA”). However, reduced staff hours and office closures are making the process more challenging.
In response to COVID-19 the state enacted legislation relaxing the deadline for responding to OPRA requests. To provide further clarity, the Government Records Council (“GRC”) and the Division of Local Government Services (“DLGS”) have both provided OPRA guidance.
New Law Modifies OPRA Deadline
In March, the New Jersey Legislation approved a measure, P.L. 2020, c.10, that modifies the deadline by which a public agency is required to respond to request for government record under OPRA during a period of emergency. Under current law, a custodian of a government record for a public agency is required to grant access to a government record or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived. Failure to respond within seven business days is deemed a denial of the request.
The new law provides that during a state of emergency, public health emergency, or state of local disaster emergency, a custodian of a government record for a public agency will be required only to make a “reasonable effort” to respond to a request for a government record within seven business days, or as soon as possible thereafter, as the circumstances permit.
Government Records Council COVID-19 OPRA Guidance
The Government Records Council recently issued a Special Statement regarding P.L. 2020, c.10 and COVID-19 Impacts on OPRA. At the outset, it notes that the information set forth in the statement “does not constitute legal advice or a final decision of the Council since the provisions of OPRA are applied to the specific facts of the request and/or complaint.” Nonetheless, the GRC provides useful guidance to records custodians impacted by COVID-19.
With regard to what constitutes a “reasonable effort” under P.L. 2020, c.10, the GRC states that an available response option is to take extensions of time as needed. It further notes that OPRA requires a custodian to respond in writing within the statutorily mandated time frame stating that an extension until a date certain is necessary. According to the GRC, the written notice regarding the extension should include the reason(s) the extension is necessary, which may include retrieval of records located in storage, archives, or off-site; conversion of the records to a different medium; building access restrictions; and/or delay in available personnel needed to provide responsive records.
The GRC guidance also emphasizes that custodians within agencies operating under normal business hours during an emergency, even if closed to the public or working off-site, are “obligated to respond to OPRA requests upon receipt in due course to the extent possible.” It also advises that custodians should proactively advise the public (by website notification and/or other methods) if the method of transmission for OPRA requests has changed or been limited due to a state of emergency.
Division of Local Government Services COVID-19 OPRA Guidance
Following the GRC’s special statement, DLGS issued its own additional OPRA guidance. It recommends that, when responding to OPRA requests, local government records custodians document in writing any emergency-related barriers to providing the requestor with a final response within the standard OPRA response timeframe. According to DLGS, examples of such barriers can include building access restrictions, or a delay in availability of personnel needed to provide responsive records to the custodian or review responsive records to determine necessary redactions.
“As when requesting an extension of time to respond under normal circumstances, the custodian should inform the requestor in writing of the specific reasons for the delay, as well as soonest possible date after the normal statutory deadline by which the custodian reasonably expects to respond under the circumstances,” the guidance states. ”To the greatest extent possible, the custodian’s initial response to the requestor should adhere to the standard timeline for an OPRA request response.”
For more information about the OPRA guidance or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.