The Open Public Records Act provides that the "custodian of a government record" means "in the case of a municipality, the municipal clerk." This simple phrase has created some concern in municipal government circles about the role of the municipal clerk and the clerk's relationship to other officials. The concern is rooted in the reality that other officials have statutorily defined responsibilities, which in most cases, include maintenance and custody of specific types of records.

Such officials include, but are not limited to, police chief, chief financial officer, tax collector, tax assessor, chief construction official, and health officer. In these cases, responsibility over maintenance of records is an inherent part of the responsibility of the official. Some observers have commented that the assignment of "custodian" responsibilities under OPRA to the municipal clerk conflicts with the inherent record-keeping responsibilities of other municipal officials.

This Records Note is intended to provide guidance to local officials that OPRA's assignment of the "custodian" responsibility to municipal clerks does not conflict with the traditional role of other public officials, and indeed, when the intent of OPRA and other statutes are taken into account, provides flexibility to local entities in deciding how best to respond to records requests.

Analysis

A core purpose of OPRA is to provide "one-stop shopping" to the public when it comes to access to local government records. It appears that one of the problems the law was intended to address was the variety of municipal government forms, different office hours and locations of officials, and a general perception that it was difficult for the public and press to access municipal government records.

By designating the Municipal Clerk as the contact person for all informational requests under OPRA, the legislature intended to promote the "one-stop shopping" concept. There are several strategies available to municipalities to accomplish this goal. . In selecting an approach, local officials should keep in mind staffing and local traditions. However, no matter what strategy is chosen, please keep in mind that OPRA was not intended to make access to records more difficult.

The strategies include:

  • The municipal clerk names deputies to assist by taking responsibility for categories of records usually kept in other places.

  • Where it is more convenient for the public to obtain access to a record by going to the specific office where that record is maintained, or can be obtained quickly, or where warranted by local tradition, continuing that custom by having a deputy or sub-custodian named to handle OPRA requests in that office.

  • Setting internal deadlines for sub-custodians to provide responses to the municipal clerk so that OPRA deadlines are met.

  • Meeting the "immediate" access requirement for financial records through the chief financial officer.

  • Using informal request processes: for example, police accident reports obtainable from the police; tax searches, from the tax collector; and for land use applications, lists of property owners within 200 feet of a proposed project through the tax assessor or planning or zoning boards.

Once again, the object is to facilitate speedy citizen access, efficiency in administration, and compliance with access laws. Consideration should also be given to internal monitoring of the time it takes to fulfill requests, the volume of requests, and other information needed to improve the public access process over time.

If records are intended to be made available through persons in addition to the municipal clerk, the municipal clerk should provide a list of sub-custodian's names, the offices, their locations, and hours so that a requester can go directly to these offices an alternative to the municipal clerk's office.

All of these practices and other locally developed alternatives can be considered for use, as long as the response to a request for access, particularly timing of response and legal review when access is denied, is met in accordance with OPRA standards. The option selected by a municipality should also undergo review by the municipal attorney to ensure the intent of OPRA is met.

It should also be remembered that notwithstanding this analysis, OPRA excludes the State's judiciary from the law including municipal courts. Access to municipal court records fall under the rules of the Supreme Court and local officials may not grant access to municipal court records.

Finally, any public official, officer or employee assigned responsibility to comply with a request can be assessed penalties under OPRA if the GRC or a court finds that this person "unreasonably denied access" to a public record "under the totality of the circumstances" and did so "knowingly and willfully."

Conclusion

Using this guidance, concerns about the responsibilities of various local officials under OPRA can be addressed. Solutions should focus on the underlying principles of the clerk as the central point of contact for the public for OPRA requests and use of alternative approaches noted above to increase the flexibility of the municipality in responding to OPRA requests. Using a combination of approaches municipalities should be able to adopt procedures and systems that ensure the publics right to timely and efficient access to government records.