Here, we discuss some tips in crafting an OPRA request that will maximize the likelihood that you’ll receive the records you’re looking for and, if the request needs to be litigated, increase the possibility of a positive income.
Do Include the “Magic Language”: Make sure to always refer to OPRA. A request for copies of records is not an OPRA request unless OPRA is specifically referenced. Otherwise, OPRA does not apply and the request is only a common law request.
Less is More: Like most communication, the best OPRA requests are succinct. Clearly identify the specific records you’re looking for, such as “A copy of the March 21, 2021 executive session meeting minutes of the governing body.”
Do Clarify a Request When Necessary: An exception to the “Less Is More” Rule is when a records custodian indicates they don’t understand the request. Always respond to requests for clarification. Unless its unreasonable, a request for clarification is generally not a denial of access, and indicates the custodian wants to work with you.
Don’t Ask Questions: There is no circumstance under which a question is an appropriate OPRA request. Records custodians are not required to conduct research to satisfy a request; a corollary of this rule is that they are not required to answer questions under OPRA.
Phrases to Avoid: Certain phrases used by litigants sometimes make unwelcome appearances in OPRA requests. Do not use phrases such as “Any and all” or “including but not limited to.” While there are exceptions, in general these phrases are not sufficiently specific.
Be Specific: Don’t use a broader term when a more specific one will suffice. Instead of requesting “communications” or “written communications,” request “emails.” Distinguish between electronic records and paper records, because a request for “correspondence” may not be interpreted to include electronic correspondence.
Be Polite (and Remember the Golden Rule): An OPRA request is not the time to tell the records custodian they are a bad person. Especially in municipalities, responding to OPRA requests is one of many duties that a records custodian must fulfill. The vast majority of OPRA requests are handled efficiently and quickly by records custodians. Acing in a polite and respectful manner will help make sure your OPRA request is one of those. Anything untoward written in an OPRA request or email to a records custodian can hurt the requestor down the road if the request is litigated in Court or the Government Records Council.
Use Lists: Sometimes OPRA requests will seek several categories of records. Make a list. Separate out the requests into categories. This will help custodians, especially if the records requested are in several places.
Grant Extensions: Be generous with extensions. When records custodians request extensions, that at the very least means they are aware of your request, and usually also means they are tracking the deadlines associated with the request. Denying requests for extensions rarely makes the records custodian move faster. And, in our experience, courts will not punish records custodians for seeking reasonable extensions of time.
Get It In Writing: Every communication regarding an OPRA request should be in writing. If a records custodian calls you, take the call, but shoot them an email afterwards confirming the substance of the call.
Effective communication is key to getting access to records. The overwhelming majority of OPRA requests are processed without litigation. Following these suggestions will help you gain access to your records while reducing miscommunication and denials of access.