Dear Somers Point City,

This is a request for public records made under OPRA and the common law right of access. I am not required to fill out the City's official form per Renna v. Cnty. of Union, 407 N.J. Super. 230 (App. Div. 2009). The city did not advise of its official form in advance of denying the request. Moreover, Dello Russo states the city must have "at least one" electronic method of accepting OPRA requests. Under the New Jersey Law Against Discrimination, I am visually impaired and can not see the form Somers Point uses. OPRA Machine accommodates visual impairments.

Please acknowledge receipt of this message.
Records requested:
Zoning applications, Construction permits, and applications for mercantile licenses for Platinum Auto Spa located in the City of Somers Point

Yours faithfully,

Brian F. McBride

Mr. McBride,

Thank you for contacting the NJ Government Records Council ("GRC"). The information provided by the GRC is guidance and does not constitute legal advice or a final decision of the GRC regarding whether a particular record is exempt from disclosure or not since the provisions of the Open Public Records Act ("OPRA") are applied to the specific facts of the request and/or complaint. Specifically, the GRC adjudicates denial of access complaints filed against state and local government records custodians.

The GRC first notes that OPRA is one means by which an individual can gain access to records in the State of New Jersey (informal, common law or discovery are some other methods). Thus, it is not the only method an individual may use when seeking information from New Jersey public agencies. Further, the requestor is the only individual capable of invoking OPRA either by submitting the his/her request on the agency’s official OPRA request form or by citing to OPRA in an equivalent writing. If an individual chooses to invoke OPRA in a request, then the statutory provisions will apply. However, some agencies have adopted policies requiring an individual to submit an OPRA request for records. Such a policy is at the agency’s prerogative and not statutorily required by OPRA, nor a GRC directive. Based on the foregoing, it is never ”necessary” for anyone to file an OPRA request to obtain any type of government record (unless agency policy dictates such).

Generally, OPRA provides that "... government records shall be readily accessible for inspection, copying, or examination .... with certain exceptions ..." N.J.S.A. 47:1A-1. Additionally, OPRA defines a government record as a record "made, maintained or kept on file ... or that has been received in the course of ... official business ..." N.J.S.A. 47:1A-1.1. Also, OPRA requires a custodian to grant access, deny access, request an extension of the statutory response time, or seek clarification of the request as soon as possible but no later than seven (7) business days from receipt of the request. N.J.S.A. 47:1A-5(i). OPRA further requires that custodians prove and inform requestors of the lawful basis for any denial of government records. N.J.S.A. 47:1A-6.

Initially, the GRC notes that all inquiries should be sent directly to the GRC Inbox, which was created for such purpose and is monitored by staff daily to ensure timely responses. Thus, the GRC requests that any inquiries you may have be sent directly to the GRC Inbox going forward. The GRC thanks you in advance for your anticipated cooperation.

Initially, the GRC notes (and reiterates from above) that its guidance provided within the framework of an inquiry response is not legal advice or a decision of the Council. Thus, any guidance provided by the GRC is not akin to a policy decree that agencies are required to follow. Instead, the GRC provides guidance based on relevant statutes and case law that may provide insight into a certain issue. Thus, the presence of any guidance on a particular issue is simply that: any individuals wishing to receive a decision from the Council will need to file a formal Denial of Access Complaint.

Moving onto inquiry, the issue seems to implicate the interplay between the court’s decisions in Renna v. Cnty. of Union, 407 N.J. Super. 230 (App. Div. 2009) and Paff v. City of East Orange, 407 N.J. Super. 221 (App. Div. 2009), which were decided on the same exact day. As you are aware, the Renna court held that a custodian could not deny access to a request simply because it was not on the agency’s official OPRA request. This holding resulting in longstanding position that a valid OPRA request not on a form is permissible so long as it clearly references OPRA. The Paff court also allowed an agency to set certain methods of transmission to the extent that same did not “impose an unreasonable obstacle” on a requestor’s ability to submit an OPRA request. The Council later found that an agency should have at least one electronic method available. See Dello Russo v. Twp. of East Orange (Essex), GRC Complaint No. 2014-430 (Interim Order dated September 29, 2015).

Unfortunately, the GRC has not been afforded the opportunity to address the above set of facts in the form of a formal Denial of Access Complaint. A possible decision with limited relevance to the forgoing issue is Roundtree v. NJ Dep’t of State, Div. of Elections, GRC Complaint No. 2013-257 & 2013-259 (June 2014)(http://www.state.nj.us/grc/decisions/pdf...). However, the Council’s decision there only addresses the agency’s failure to advise the public of its preferred methods of transmission and not whether those methods violated Paff, 407 N.J. Super. 221 and Dello Russo, GRC 2014-430. Thus, no current guidance directly on point exists and any complaint on this issue would be novel.

Finally, and as you are aware, if you make an official OPRA request of a records custodian in New Jersey and you believe you are unlawfully denied access to government records, you may file an action in Superior Court and pay the court filing fee or file a denial of access complaint with our agency (the Government Records Council). Please note that filing in court may result in your complaint being resolved more quickly than filing with the GRC. Additionally, the court can assess your common law right of access whereas the GRC cannot. Should you choose to file a complaint in Superior Court, you must contact the Court Clerk for the county in which you plan to file. Should you choose to file a complaint with the GRC, you must download a Denial of Access Complaint form from our website (http://www.nj.gov/grc/register/), fill it out and send it to our agency.

All Denial of Access Complaints must be submitted to the following:

Government Records Council
101 South Broad Street
PO Box 819
Trenton NJ 08625-0819
or
(609) 633-6337 Fax
or
[email address]

Sincerely,

Frank F. Caruso
Government Records Council
Executive Director
Tel: (609) 292-6830 | Fax: (609) 633-6337
http://www.state.nj.us/grc/