OPRA's Deadlines are Relaxed During States of Emergency
On March 20, 2020, Governor Murphy signed a series of coronavirus-related bills into law. Among them was A3849, which modifies the deadline by which public agencies must respond to an OPRA request during an emergency.
Under normal circumstances, a public agency must respond to an OPRA request as soon as possible and no later than seven business days from the date of the request. The amendment provides that:
During a period declared pursuant to the laws of this State as a state of emergency, public health emergency, or state of local disaster emergency, the deadlines by which to respond to a request for, or grant or deny access to, a government record under paragraph (1) of this subsection or subsection e. of this section shall not apply, provided, however, that the custodian of a government record shall make a reasonable effort, as the circumstances permit, to respond to a request for access to a government record within seven business days or as soon as possible thereafter.
In other words, where there is declared emergency, a public agency need not respond during seven business days. Instead, it must only make a "reasonable effort" to respond within seven business days or as soon as it is able to do so.
Those who frequently file OPRA requests know that agencies already frequently fail to comply with OPRA's deadlines. We have written about about agencies taking multiple extensions before and and we have even sued and obtained rulings finding that certain agencies have engaged in a "pattern and practice" of violating OPRA's statutory time frames. Frankly, many wonder why this bill was necessary in light of the fact that agencies already routinely take extensions.
In our minds, though, this new bill evidences a very clear legislative intent that agencies should always comply with OPRA's statutory seven-day deadline and that any "reasonableness" arguments for a delay should be rejected unless there is a declared emergency. We hope the courts and GRC will agree and put an end to agencies automatically granting themselves endless extensions.
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