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Paff v. City of East Orange

May 21, 2009

JOHN PAFF, COMPLAINANT-APPELLANT,
v.
CITY OF EAST ORANGE, RESPONDENT-RESPONDENT.



On appeal from the Government Records Council, Complaint No. 2007-297.

The opinion of the court was delivered by: Skillman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted March 31, 2009

Before Judges Skillman, Grall and Espinosa.

The issue presented by this appeal is whether a subsection of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, which provides that "[a] request for access to a government record shall be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian," N.J.S.A. 47:1A-5(g), requires a public agency to accept a request for a government record transmitted by any of the methods of transmission mentioned in this subsection. We conclude that the authority N.J.S.A. 47:1A-5(f)(1) confers upon a custodian of government records to adopt a form for requesting access to a government record, which includes "specific directions and procedures for requesting a record," authorizes a custodian to direct that a request for a government record must be transmitted only by methods specified in the form, which need not include every method of transmission mentioned in N.J.S.A. 47:1A-5(g).

On November 16, 2007, complainant John Paff sent a request for government records to East Orange's custodian of government records. This request was made on East Orange's form for use in requesting access to government records, which states:

State law requires that in order to request access to government records, you must complete, sign and date this request form and deliver it in person, by mail or electronically during regular business hours to the appropriate custodian of the record requested. The East Orange City Clerk's Office will not accept submission of a requested form by fax. [Emphasis added.]

Paff transmitted his request to the custodian of records by fax.

On November 19, 2007, East Orange notified Paff by telephone that it does not accept requests for government records submitted by fax, and that he would need to mail or hand-deliver his request to the custodian of records in order for it to be processed.

Paff did not resubmit his request by mail or hand delivery. Instead, he filed a denial of access complaint with the Government Records Council (GRC), claiming that East Orange was obligated under N.J.S.A. 47:1A-5(g) to accept a request for government records transmitted by fax.

The executive director of the GRC submitted a report to the GRC recommending rejection of Paff's complaint. She stated that "a custodian has . . . discretion in developing processes so that he or she can best meet his or her obligation[s] under OPRA," and that "there may be compelling reasons why a public agency may choose not to receive OPRA requests by means of facsimile transmissions." One reason she noted is that "some public agencies may not have a dedicated fax line for their records custodian."

On March 26, 2008, the GRC issued a final decision that adopted the findings and recommendations of its executive director and held that East Orange's custodian of records did not deny Paff's request for government records by refusing to accept its transmission by fax. Paff appeals from this final agency decision.

OPRA is predicated upon a legislative finding that "government records shall be readily accessible for inspection, copying or examination by the citizens of this State." N.J.S.A. 47:1A-1. In pursuit of this objective, the Legislature established a state administrative agency, ...


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