Appellate Division Finds Municipal Records Custodian Acted Reasonably in Conferring with IT Consultant on OPRA Request
Mar 2, 2022 | Written by: | Share
In McMorrow v. Borough of Englewood Cliffs, A-3192-19 (decided Feb. 25, 2022), the NJ Appellate Division confirmed a records custodian’s right to consult with professionals with regard to an Open Public Records Act (OPRA) request. The plaintiff filed an OPRA request for various documents, including emails from present and past governing body members. The municipal records custodian responded that she did not have the ability to access the records and had reached out to the municipal IT consultant, who advised that a special service charge would apply. The plaintiff filed a complaint seeking access to the records without the imposition of a special service charge.
The trial court judge held that the municipality had not satisfied its burden to justify the imposition of a special service charge, and that the records custodian’s lack of technical knowledge did not justify the imposition of a special service charge. The trial court judge also found that the failure to produce the records was a “knowing and willful” violation of OPRA, requiring a penalty be assessed against the records custodian. The municipality appealed with regard only to the finding of a “knowing and willful” OPRA violation.
The Appellate Division overturned the trial court’s decision on the issue and held that the record did not support the finding of a knowing and willful OPRA violation. The records custodian supplied a certification to the trial court noting that her “technological knowledge” was limited and she could not access the email accounts. The municipal IT consultant also filed a certification with the trial court detailing the process of searching the email accounts in response to the OPRA request. In its holding, the Appellate Division applied the holding in Bart v. City of Paterson Housing Authority, 403 N.J. Super. 609, 612 (App. Div. 2008), wherein the court held that a decision to consult with legal counsel on an OPRA request could not support a finding of a knowing and willful violation of OPRA. The Appellate Division in McMorrow extended this holding to apply to an IT consultant.
This holding is also consistent with a prior decision of the Government Records Council (“GRC”). Initially, the GRC declined to hold that seeking an extension on the time to respond to an OPRA request in order to seek legal advice is a legitimate reason for an extension. Paff v. Borough of Somerville, GRC Case No. 2005-55 (November 2005). (In that matter, the Council held that the custodian was in violation of N.J.S.A. 47:1A-5.i. for failing to respond in a timely manner even though the custodian asserted the delay was caused by his efforts to obtain legal advice.) However, although the GRC deems such a delay to be a technical violation of OPRA, it has found that seeking the advice of an attorney is a “reasonable delay” and does not support the finding of a “knowing and willful” OPRA violation. Angel v. Mullica Twp., GRC Case No. 2005-2007 (May 2006).
Therefore, records custodians should feel justified in consulting with attorneys or other professionals with regard to OPRA requests, however, those consultations should not contribute to a delay in response time.
Tara St. Angelo, Esq. concentrates her practice primarily in the areas of municipal and land use law. She was named to the NJ Super Lawyers Rising Stars list for State, Local and Municipal law by Thomson Reuters in 2017, 2018, 2019, 2020, and 2021. Contact Ms. St. Angelo at Gebhardt & Kiefer, PC at 908-735-5161 or via email.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.