On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-1145-06.
The opinion of the court was delivered by: Carchman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, R. B. Coleman and Simonelli.
The narrow issue that we address on this appeal is whether the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (OPRA), requires that a request for government records be submitted on an agency's official form.
The positions of the parties are simply stated -- plaintiff Tina Renna asserts that the plain language of OPRA, combined with the Legislature's policy of providing ready access to public records, mandate that an official form be optional. Defendant Union County (the County) counters that the plain language of OPRA and the Legislature's policy in providing for a streamlined method to process OPRA requests mandate that the government form be utilized for all requests made under OPRA.
We hold that all requests for OPRA records must be in writing; that such requests shall utilize the forms provided by the custodian of the records; however, no custodian shall withhold such records if the written request for such records, not presented on the official form, contains the requisite information prescribed in N.J.S.A. 47:1A-5(f). Where the requestor fails to produce an equivalent writing that raises issues as to the nature or substance of the requested records, the custodian may require that the requestor complete the form generated by the custodian pursuant to N.J.S.A. 47:1A-5(g).
To provide appropriate context for consideration of the issue in dispute, we briefly set forth the relevant facts.
The dispute arose following the issuance of an advisory opinion issued by Amicus curiae, the Government Records Council (GRC), a administrative agency established under OPRA. N.J.S.A. 47:1A-7. Among its enabled authority, the GRC shall: issue advisory opinions, on its own initiative, as to whether a particular type of record is a government record which is accessible to the public; prepare guidelines and an informational pamphlet for use by records custodians in complying with the law governing access to public records; prepare an informational pamphlet explaining the public's right of access to government records and the methods for resolving disputes regarding access, which records custodians shall make available to persons requesting access to a government record[.] [N.J.S.A. 47:1A-7(b).]
On February 17, 2006, the GRC issued Advisory Opinion No. 2006-01 addressing the issue: "What Constitutes a Valid Open Public Records Request" under OPRA. In the opinion, the GRC acknowledged that it had previously "taken the position that public agencies must accept OPRA requests, even when they are not submitted on the public agency's official OPRA records request form[,]" but that it had decided to change this policy due to practical problems agencies experienced without a form. The GRC noted "[m]any agencies grant non-OPRA requests for such documents as building inspection reports," however, some had "experienced difficulty in distinguishing between non-OPRA requests" and OPRA requests, which require a response within certain time frames. In addition, the agencies were concerned that "vague or unspecific records requests, usually associated with the use of a non-official OPRA request form," would cause employees to respond in an untimely fashion and risk being penalized under OPRA. After a discussion of the applicable statutory and case law, the GRC concluded that "the statute requires all requestors to submit OPRA requests on an agency's official OPRA records request form" and "[w]hen an agency has not adopted its own official OPRA records request form, requestors may submit their records request on the Model Request Form located on the Government Records Council website."
On March 10, 2006, the custodian of records of the County sent an e-mail to all known and regular OPRA requestors, including plaintiff, notifying them of the GRC's Advisory Opinion 2006-01 and the County's new policy requiring an official OPRA form for all future requests. On that same date, the County also sent an e-mail attaching a copy of its official OPRA request form.
Three days later, on March 13, plaintiff e-mailed the County requesting "an electronic copy of Union County resolution number 42-2005." A few hours later, the County sent a reply e-mail directing plaintiff to the March 10, 2006 e-mails notifying her of defendant's new policy and directing plaintiff to use the form that had been attached to the e-mails. Plaintiff replied, stating:
I believe that both the GRC Advisory Opinion No. 2006-01 and Union County's practice of requiring use of its official form violate OPRA Section 5g, which provides that "A request for access to a government record shall be in writing. . . ."
Please state whether or not it is Union County's position that it will not process my email request because I have not used Union County's official OPRA form.
Defendant responded by e-mail:
Mrs. Renna: If you have an issue with the advisory opinion, kindly address your concerns to the Government Records Council. However, I am obligated to follow the regulations promulgated by the Government Records Council. I am respectfully requesting you to do the same and please submit your request on the forms emailed to you on Friday [March 10, 2006].
Thereafter, on March 28, 2006, plaintiff filed a verified complaint and an order to show cause in the Superior Court, Union County.*fn1 After the County filed an answer, the matter was transferred to us; however, on June 1, 2007, we determined that as the Advisory Opinion was not final, we had no jurisdiction. Renna v. County of Union, No. ...