newjerseynewsroom.com

BY JOE TYRRELL

NEWJERSEYNEWSROOM.COM

In separate rulings, one appellate court has improved New Jerseyans' ability to see public records, while another has made it harder.

In a Union County case, a three-judge appellate panel ruled the state Open Public Records Act does not require members of the public to use official forms when asking for records, as long as their requests are similarly clear and specific.

But in an East Orange dispute, another group of judges gave wide leeway to government officials in deciding which requests to accept. For example, while OPRA permits the public to submit requests "electronically," they ruled that does not mean the city clerk's office must accept faxes.

The disparate decisions, issued almost simultaneously on May 21, involve opinions promulgated by the state Government Records Council.

The state's revised OPRA law created the council in 2001 to educate the public and government officials about the law, and provide a forum to resolve disputes without going to court.

Under Gov. Jon Corzine, though, the GRC has encouraged tighter administrative controls over records. In 2006, the council reversed its earlier policy and issued an advisory opinion that the law requires requesters to use each agency's version of request forms.

Union County immediately adopted this advice as policy, saying it was "obligated to follow the regulations promulgated" by the GRC. When the county cited the new policy in rejecting an e-mail request for an ordinance from Tina Renna, head of the Union County Watchdog Association, she filed suit.

The GRC, represented by the state Attorney General's office, lined up on the other side.

Her case, brought by Montclair attorney Richard Gutman, cited OPRA's statement that a records request "shall be in writing." Renna argued the law does specify a particular form, much less the varied ones promulgated by different agencies in the wake of the GRC's change of heart. The county won at trial, but the appeals court has reversed.

In their ruling, Judges Philip S. Carchman, Rudy B. Coleman and Marie Simonelli cited the legislative history of the law. At that time, the state Attorney General's Office suggested agencies would be better able to keep track of written requests, and members of the public would have documentation if they did not receive answers within the required seven business days or less.

"We deem the legislative mandate for a form to be one of accommodation rather than restriction," said the ruling, written by Carchman. He noted other states have done away with requirements to use official forms, and some do not require anything in writing.

Aside from the GRC, the decision found that "no state has adopted a statute or procedure that limits access to records to a written request on an official form."

But the judges recognized the bureaucratic advantages of using official forms that briefly spell out what documents are being sought. Requesters "should" use official forms, or provide the same type of information, the judges said.

If their unofficial requests are unclear, records custodians may require them to be resubmitted on official forms, as long as this is not merely a dodge, the court ruled.

"This decision will mean easier access to public records," Gutman said. "That's what the Legislature intended when they wrote in OPRA's first sentence that public records should be 'readily accessible.'"