April 05, 2017
RECORD CUSTODIANS, BEWARE! OPRA Requests Can Turn Costly

The New Jersey Open Public Records Act (OPRA) continues to strike fear into the hearts of records custodians statewide. While the$600,000.00 plus award of attorney’s fees in an OPRA case out of a central New Jersey municipality sets a standard that will be hard to surpass, awards of attorney’s fees over the last couple years have steadily increased, even while the courts have expanded the scope of information available to the public under OPRA. In Monmouth County, a municipality was ordered to pay in excess of$21,000.00 in attorney’s fees, calculated at the rate of $315.00 per hour of attorney time. 

A state-level law enforcement agency was ordered to pay in excess of $57,000.00 at the rate of $300.00 per hour of attorney time. And a county level agency was ordered to pay in excess of $45,000.00 in attorney’s fees at the rate of $350.00 per hour of attorney time. There has even been an award of $10,000.00 in fees in a case where there were no records to turn over. In addition, rumor has it that there have been other very substantial awards, in the six figure range of fees that have been sealed by agreement of the parties upon settlement of the dispute.
These are substantial numbers, both in terms of the fees awarded and the rate at which the attorney’s time is calculated. The lesson is that where OPRA is concerned, the failure to engage and respond in a timely and substantive manner, can be very expensive.

At the same time, records custodians are faced with an expansion of the scope of the definition of a “government record” under OPRA. In June of 2017, the New Jersey Supreme Court overturned an Appellate Court Decision that limited the definition of government record under OPRA to what we normally think of as a record, including those kept in electronic form. Since the publication of Paff v. Galloway Township, (A8815) (077692) published on June 20, 2017, it is now clear that “government record” as the term is used in the OPRA statutes, includes all the electronically stored information related to government activity, whether or not it is related to a more traditional “record” of government activity. The decision does not describe this data other than to say it is “information stored or maintained electronically” by the government. Specifically, the case involved an OPRA request for email header information including sender, recipient, date and time, and subject field data between specific municipal employees for a specific period of time. The request did not include the substance of the related emails. 

The township’s initial response was to deny the request as it did not request existing “records” under the commonly accepted OPRA definition. The township did admit that it had the technical capability to provide the information with little effort, and that they had, under different circumstances, provided similar information in response to a different OPRA request but had discontinued the practice after deciding that they were not required to. These answers, apparently, did not impress the court. Takeaways from the case include:

1.      Case related emails are clearly government records, including any related meta data or other data included in the substance of the communication;

2.      If the government agency can produce the data with minimal technical effort, they must, but if more involved technical assistance is needed, OPRA leaves open the possibility that the requestor may have to pay;

3.     The case does not address in any way or limit the legitimate reasons an agency may have for redacting the data prior to responding to the request, and leaves that issue unaddressed. 

This decision poses a serious dilemma for record custodians who are already faced with very restrictive time limits and harsh penalties for being wrong. Many record custodians may not even know of the existence of data associated with the government records they handle, much less how to extract it and package it for delivery. 

But fear not! CSI Technology Group is working on an OPRA module designed to enhance a record custodian’s ability to search across cases and modules to collect, package, redact and document responses to OPRA requests in a timely manner. The module includes tracking features that allow the custodian to track the timing of OPRA requests and assist in making timely seven day responses and final responses. It also includes redaction features that are similar to CSI’s eDiscovery redaction tools but allow for the documentation of the reasons for each redaction and the automated production of a Vaughn Index, if necessary. We at CSI are here for you, and want to help your agency avoid the substantial awards being handed out in cases such as those mentioned above.