The Rules Surrounding Transparency Continue to Not Matter….

I recently wrote about an exchange involving my own OPRA request, and I have received more information about how OPRA requests have been handled by our District from other residents. In short, residents are at the mercy of the Custodian of Records and/or the Business Administrator, and they have little recourse with the Government Records Council, despite that agency’s responsibility to uphold the public’s right to access of documents.

In my case, I asked the BOE how many OPRA requests the district had (that was allowing the resignation of Hopkins as Custodian). After receiving no answer, I filed an OPRA to get the recent number of OPRA requests. See the response I received here, telling me a 7 week and 2 day extension was needed.

Resident Herb Waddell had sent in an OPRA request for contracts and proposals. In his case, he did not initially receive a response at all. He emailed Mr. Hopkins after the time allowed for a response had passed. Mr. Hopkins admitted to having scheduled a response to go out on the last possible day, but for some reason the email was not sent. (Also see a rather humorous exchange about Hopkins use of “M”. as a title.) See that email exchange here.

In Mr. Hopkins’ form letter, used to delay access to records, he cites N.J.S.A. 47:A1-5i. It states: “Unless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record shall grant access to a government record or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived. In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request, unless the requestor has elected not to provide a name, address or telephone number, or other means of contacting the requestor. Open Public Records Act – N.J.S.A. 47:1A-1 et seq. Page 15 of 23 If the requestor has elected not to provide a name, address, or telephone number, or other means of contacting the requestor, the custodian shall not be required to respond until the requestor reappears before the custodian seeking a response to the original request. If the government record is in storage or archived, the requestor shall be so advised within seven business days after the custodian receives the request. The requestor shall be advised by the custodian when the record can be made available. If the record is not made available by that time, access shall be deemed denied.”

GRC states: “Under OPRA, the custodian must respond to request “as soon as possible” but requesters must receive a response within seven business days after the custodian receives a complete request. That does not mean that a record in storage, or one that is difficult to find, will be available during that time. In that situation, the requester and custodian should try to agree on a specific date by which the document will be available. If the requester believes that the date given by the custodian is an “unreasonable period of time” and will not agree to wait until that date to access the document, the requester can consider this a denial of access and start action against the custodian.”

In the extension form letter, Mr. Hopkins refers to Scheeler v. New Jersey Department of Education, which notes that extended time was needed due to the “voluminous nature of both the request and the responsive records”.

There have been no claims by Mr. Hopkins that the records are in storage or currently unavailable. There is no claim of volume being an issue. In fact, a third resident request, for committee meeting minutes for the month of September, supposedly needs a six-week extension to fulfill.

Last, but not least, Mr. Hopkins (non)reply to my request came on December 5th – after he was no longer officially the Custodian of Records.  The Board’s attempts at putting Mr. Hopkins back in place are baffling and laughable.  Mr. Hopkins’ resignation was voted upon in November and was effective December 1st.  As of the first, Mr. Hopkins was NOT custodian.  If someone does not hold a position, how can they resign again, but at a later date?  If nothing else tells you that this administration and some BOE members apply the rules selectively, this action should make it abundantly clear.  At this point it’s more than obvious that you really cannot fight town hall: not in the standard manner, which is why articles like this one get written.

In forwarding a complaint to the GRC, it appears this government agency operates in the same manner as many others.  Findings can take years to determine – well beyond the time when the findings are of any use to the person seeking relief.  Similar to the School Ethics Commission process for determining ethics complaints, by the time matters are decided, the affected parties are often no longer in the positions they once held.  Mr. Hopkins and Mr. Juskiewicz must be laughing harder than Santa at this point, as they deliver a lump of coal to those who have the nerve to ask them to perform their jobs in accordance with the rules.  

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