Government “Cannot Erect Technological Barriers to Deny Access to Government Records That Were Previously Available Under OPRA”

Conley v. New Jersey Department of Corrections, ___ N.J. Super. ___ (App. Div. 2018).  This was an appeal brought by a pro se prisoner under the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (“OPRA”).  He sought certain monthly reports from the Department of Corrections.  He had been able to get those reports in the past.  But this time the Department responded that it had begun using “a new database system in which the above requested monthly reports (as  provided to [appellant] in previous requests are no longer generated or available.”  Thus, the Department would not produce the reports to plaintiff.  Plaintiff asserted that state and federal regulations required the Department to prepare and maintain the reports, but the Department maintained its position.

Plaintiff appealed to the Government Records Council (“GRC”).  The GRC upheld the Department’s position.  Plaintiff then went to the Appellate Division, and today that court reversed in an opinion by Judge Fuentes.

Judge Fuentes began by highlighting the purpose of OPRA, which is to “maximize public knowledge about public affairs in order to ensure an informed citizenry and the minimize the evils inherent in a secluded process.”  He agreed with plaintiff that the federal and state regulations that he cited required the Department to keep and maintain the reports that plaintiff had sought.  The fact that the Department had altered its systems did not permit the Department to withhold the reports.  “Technological advancements in data storage should enhance, not diminish, the public’s right to access ‘government records’ under OPRA….  A government agency cannot erect technological barriers to deny access to government records that were previously available under OPRA.”

Judge Fuentes then went on to clarify the standard of review on appeals from the GRC.  The Department and the GRC urged that a very deferential standard, comparable to that generally applied in review of administrative agencies, be applied.  Judge Fuentes disagreed.  He observed that deference to the GRC is not appropriate in the OPRA context, since no agency expertise is involved.  “The GRC did not conduct an evidentiary hearing or make factual findings based on witnesses’ testimony.  The GRC merely accepted as reasonable the [Department’s] legal position concerning the denial of appellant’s request.”  Moreover, the GRC can issue only advisory opinions.  Accordingly, the de novo standard of review applied, and the panel reversed the GRC.

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