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New Jersey Builders Association v. New Jersey Council on Affordable Housing

390 N.J. Super. 166, 915 A.2d 23 (App. Div. 2007)

OPEN PUBLIC RECORDS ACT — Where a request for information does not specifically identify the documents being sought, the request does not comply with the Open Public Records Act and therefore the Act’s requirement that the agency produce the records within seven business days does not apply.

A government agency proposed new rules regarding fair-share housing obligations. Then, a professional association submitted a request for the government documents with the rules, using a request form that the agency provided. The association asserted rights of access to the information under the Open Public Records Act (OPRA) and under common law. OPRA provides specific procedures for requests and responses to make government records accessible. Requests must specifically describe the sought documents, and OPRA-qualifying requests are generally to be fulfilled within seven business days. If an agency doesn’t respond within the allowed time, then the request is deemed denied, and the requestor may begin litigation. In the ensuing litigation, the agency must prove that its denial was authorized by law, or else the court will compel access to the information and will order the agency to pay the requestor’s attorney’s fees.

The agency’s form directed the requestor to be specific in describing the requested records. The association merely listed thirty-eight separate requests, all of which asked for “any and all documents and data” that the agency had used or considered in setting its proposed rules. Within six business days of the request, the agency responded that it needed additional time to assess the request and gather information. It provided the association with a date, three to four weeks later, by which the information would be provided. The association said it would only agree to the later date if the agency extended the period for public comment on its proposed regulations. The agency refused to extend the comment period which was scheduled to end nearly a month after the date on which the agency promised to provide the requested documents.

Before the agency complied with the document requests, the association sued to enforce its rights under OPRA and under the common law. Less than a week later, the agency responded to many of the association’s requests and invited the association to make an appointment to review public comments. The agency also indicated that it had no documents to respond to some of the requests, and stated that it would submit additional information that was not in its possession by the stated later date. The lower court found that the agency’s offer to produce the information by the later date was reasonable since the association’s request was so extensive. It dismissed the association’s complaint. The association then moved for an award of fees pursuant to OPRA. The lower court concluded that the association was not a prevailing party within the meaning of OPRA, and was not entitled to fees because the association had filed its complaint before giving the agency a reasonable opportunity to respond.

The association appealed the denial of fees, but the Appellate Division affirmed the lower court’s decision. The Court explained that OPRA does not cover requests for general information to be analyzed and compiled by the responding government agency. It found that because the association’s request did not specifically identify the documents being sought, as OPRA requires, it did not comply with OPRA and therefore OPRA’s requirement that the agency produce the records within seven business days did not apply. Therefore, failure to supply the documents within seven days was not an improper “denial.” Additionally, the Court found that the association’s request required the agency to survey employees and produce new documents, and these were not required tasks under OPRA. The agency established that complying with the association’s requests would have substantially disrupted the agency’s operations, and therefore, under OPRA, the agency was allowed to offer a reasonable solution that accommodated the needs of both the association and the agency. Consequently, the Court found that the delay was reasonable under the circumstances, and that the agency established that its response was authorized by law, and it concluded that the association was not entitled to attorney’s fees under OPRA.

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