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Article IndexOne beneficiary of the court ruling, though, is John Paff of Franklin Township, head of the Libertarian Party's open government initiative in New Jersey.
"The ruling resolves a long-standing problem," he said.
Paff cited recent experience. On April 10, he asked for records from Woodbridge Fire District No. 2, using a standard state OPRA request form. On April 22, the district replied by directing him to re-submit the request on its own form.
The difference? The standard form has "transparent government is vital" in a box. The fire district's form replaces the slogan with a decorative Maltese cross. The GRC rejected Paff's requests to take up the issue.
But as the losing party in the East Orange case, Paff is concerned about the implications of that ruling.
In November 2007, he asked for city records, ignoring a statement on the clerk's form that the office would not accept faxes. In response, the clerk told him to re-submit the request in person or by mail.
Citing the law's provisions that requests can be "hand-delivered, mailed, transmitted electronically, or otherwise conveyed," Paff asked the GRC to tell East Orange to accept faxes.
But in March 2008, the GRC accepted the interpretation of its executive director, Catherine Starghill, that the law gives the clerk or other records custodian "discretion in developing processes to that he or she can best meet his or her obligation[s] under OPRA."
Paff sued, and again the GRC, represented by the Attorney General, joined the city to oppose him.
When OPRA was written, the theory behind the word "electronically" was that it would reflect current and future technology by including faxes, e-mails and any other system likely to be adopted. The idea was to make it easy for the public by allowing requesters to use any format generally used by a government agency.
But Starghill said some agencies might not have fax lines dedicated just to OPRA requests. The appellate judges agreed.
In a decision written by Skillman, they said that while the law allows the public to use various methods to ask for records, "it does not expressly require a public agency to accept... [a] request by any one of the methods."
"The clerk was simply operating within the discretion given to her by the Government Records Council in its interpretation of the statute," said Kevin D. Harris, the city's assistant corporation council, who wrote the brief.
"The two questions were, is the clerk entitled to number one, establish a form for requests, and number two, establish the manner in which they can be delivered?" Harris said.
Harris noted this could play out differently around the state, depending on forms and procedures adopted by various agencies.
"The clerk could decide not to accept written or hand-in requests, but only to accept faxes," he said.
In the decision, Skillman noted East Orange's policy "allows submission by mail or 'electronically.'" It concluded the elimination of faxes from the broad category of "electronically" would not impose an undue burden on the public.
The decision as to whether East Orange will allow any form of electronic request may require further discussion, Harris said. But for now, the city continues to accept mailed or in-person requests for access to records, he said.
Paff said he is concerned that such limits will be come commonplace,
"I think it's probable that custodians, after reading this decision, will adopt policies that specify mail or personal delivery," Paff said, adding he has not decided whether to appeal.
For his part, Skillman wrote that even if the judges had any doubt, "we would defer to the GRC's interpretation."
Harris said the city is also prepared to follow the GRC's lead, even if it reverts to its old interpretation of the law.
"If they change it back... we'll make whatever adjustments are necessary," he said.
