As OPRA requestors and readers of this blog know, a challenge to a denial of access must be filed in Superior Court within 45 calendar days after the denial. (Government Records Council complaints can be filed at any time after a denial. But when does the 45-day clock begin to run? That depends. This blog post discusses several common scenarios.
Upon Transmission of a Written Denial of Access
Ordinarily, the 45-day time period to file in Court begins to run on the first day after the denial. So, for example, if an OPRA request was denied on July 20, 2021, the first day of the 45 days would be July 21, 2021, and the 45th day to file the lawsuit would be September 3, 2021. The time period is measured in calendar days, not business days, except that if the last day to file a lawsuit falls on a day when courts are closed, such as a Saturday, Sunday, or holiday, then the time to file is automatically extended to the next business day.
Note that time starts to run when the denial is transmitted, not when the denial is received. While this does not matter when denials are transmitted via email or online OPRA portals, a requestor will not get extra time to file a lawsuit for denials that are transmitted through the mail. Absent extraordinary circumstances, time should be counted from the date on the face of the denial.
Deemed Denial of Access
If a records custodian does not respond at all to an OPRA request within seven business days (not calendar days), then the statute of limitations would start to run on the 8th business day after the request was received. However, filing a lawsuit based solely on a complete failure to respond carries several risks. First, the records custodian may not have received the OPRA request. Second, the records custodian may have responded and either provided the records or requested an extension, but the response was never received by the requestor. Third, even if the records custodian never responded, the requestor would be at somewhat of a disadvantage because the requestor does not know any of the OPRA exceptions that the custodian might assert. Before filing a denial of access complaint based solely on the lack of any response, attempts should be made to confirm the OPRA request was received.
After the Expiration of Extensions
Sometimes records custodians grant themselves extensions of time to respond, and then fail to meet their own deadlines. The statute of limitations period would begin to run the day after the extension period has expired. The same cautions about potential missed communications regarding deemed denials would also apply here.
The best OPRA complaints are based on written denials of access. Sometimes filing an OPRA lawsuit without a denial of access is necessary. To minimize the risk that responses to OPRA requests have been misdirected, email communications or an agency’s OPRA portal should be used, if one is available.