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January 3, 2013 | Comments Off on DENIAL OF AN OPRA REQUEST
Posted by Frank Ciesla

Under New Jersey’s Open Public Records Act (OPRA), members of the public may request copies of certain public records.  The government agency involved decides whether to grant or deny the request.  If the agency denies the request, the requestor may appeal either through an administrative route (through the Government Records Council), or through the courts.

In making the decision whether to appeal a denial of an OPRA request through the courts or through the administrative route, one should consider the case in which I was involved, Frank R. Ciesla o/b/o The Valley Hospital v. New Jersey Department of Health and Senior Services, Division of Health Care and Quality Oversight and Hackensack University Medical Center, and the tortuous path I had to follow through the Government Records Council.

Buried in the decision is the fact that I filed the appeal in February 2010 with the Government Records Council, which did not make a decision in regard to that request until May 24, 2011.  Most, if not all, of the delay was due to the fact that the Government Records Council could not gather a quorum to hold a meeting to discuss and decide this appeal or the many other appeals that were pending.  At their May 24, 2011 meeting, the Government Records Council adopted the Executive Director’s findings not only in this case but in numerous cases that were pending before the Council.

Unlike a court, no oral argument is permitted before the Council and the Council’s decision is based on the briefs filed by the parties.  The Council “reviews the briefs” and votes to either adopt, modify or reject the recommendation of the Executive Director.

My case became even more convoluted when I appealed the Council’s decision to the Appellate Division.  The record of the case before the Council was filed by the Attorney General’s Office, I filed a motion to supplement the record, it was opposed by the Attorney General’s Office, and the court issued a decision on that motion.  At that point in time, the Attorney General’s Office determined that it did not have authority to represent the Government Records Council and it withdrew the record.  I then withdrew my motion and it withdrew its response, and obviously the decision of the Court was then moot.  An outside independent law firm then appeared on behalf of the Government Records Council and we started the whole process over.

In addition to the fact that the Government Records Council’s jurisdiction is limited, as set forth in the opinion, and it does not make a decision on the common law rights of access to public records, in deciding how to appeal the denial of an OPRA request, one must consider the track record of the Government Records Council in its untimely resolution of appeals.


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