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Must a public agency accept a request for public records if it is not on the Custodian's OPRA form? The answer is yes. The reason why is explained below, along with advice for custodians on handling these requests.
There are several OPRA provisions that refer to the use of request forms. N.J.S.A. 47:1A-5(f) requires custodians to adopt a form for the public to request records. Further, OPRA mandates the form to contain a statement of the requestor's rights under OPRA. However, OPRA does not state that the form must be used for requests. OPRA also permits requests to be filed electronically [N.J.S.A. 47:1A-5(g)].
There are obvious advantages to using a custodian's official request form. First, using the form increases the probability the requestor will provide the custodian all the information needed to process the request. Using official OPRA forms also assists public entities with high volumes of incoming mail to quickly spot OPRA requests requiring immediate attention.
However, in viewing OPRA's provisions as a whole, the requirement for custodians to adopt an "official" OPRA request form is intended to educate and assist the public with the process of obtaining records under OPRA. It is not intended as a barrier to access for those requestors who already know their rights under OPRA and know what information is required by a custodian to complete an OPRA request.
Thus, a custodian should accept any communication that is clearly a request for records if it contains the information necessary for that custodian to fulfill the request, even if it is not submitted on the custodian's "official" OPRA request form. Necessary information would include a description of the record(s) sought, the maximum dollar amount the requester is willing to pay if copies are requested, and a plain statement that the submission is intended as a request for records. Because OPRA permits anonymous requests, the requester's name or contact information is not required. OPRA states that deposits may be required for anonymous requests involving more than $5 in copy costs.
If a custodian rejects a request because of insufficient information, the correspondence should be returned to the requester with a copy of the agency's OPRA form, indicating why the correspondence does not meet the criteria for requests under OPRA, and that the agency will accept a revised submission or a request submitted on the agency's form
Custodians may contact OPRA requesters whose plain-paper correspondence was misrouted or co-mingled with non-time-sensitive papers and arrange for a mutually agreeable response deadline. If the requester and custodian are unable to agree on a date, the custodian should fulfill the request as soon as possible but no later than seven business days from the date the custodian identifies the correspondence as an OPRA request. Of course, the custodian may also negotiate an extended deadline with the requester to accommodate large-volume requests, retrieval from remote storage locations, unusual format copying, or other considerations set forth in OPRA.
If a Custodian decides to deny any part of an OPRA request that has not been submitted on the custodian's "official" OPRA form, the Custodian is still obligated to provide the requestor the reasons for the denial in writing along with all information necessary for the requestor to appeal the denial under OPRA.
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