Proposed Government Records Council Regulations

On May 16, 2022, the Government Records Council (“GRC”) published amended proposed regulations that contain important changes in how the GRC handles cases and operates.

The most important change is probably to the statute of limitations applicable GRC complaints. Currently, there is no time limit to file a complaint with the GRC. The proposed regulations would set a limitations period of sixty calendar days from the date of the denial or from the seventh business day after the OPRA request was filed if there was no response. The proposed regulations do not address whether the statute of limitations would be tolled if the limitations period ends on a Saturday, Sunday, legal holiday or other day when the GRC is closed. Since the GRC accepts new complaints by email, until this issue is clarified through further amendments of the proposed rules or through future cases, complainants should file their complaints not later than the 60th day, even if that day is not a business day.

The proposed regulations set forth requirements for a complainant to proceed anonymously. Complainants who wish to proceed anonymously must show by clear and convincing evidence that there are “compelling” reasons to proceed anonymously, such as to avoid the risk of physical harm, or the complaint will reveal “highly personal and private information," or the relief sought would be defeated by revealing the complainant’s identity. There is also an “other substantial reasons” catch-all. This proposal strikes us as a difficult bar to meet. Considering the rigor of this standard, coupled with the short statute of limitations period, complainants who seek to remain anonymous are probably better off filing in Superior Court.

In a change that would materially undermine transparency at the GRC, the proposed regulations would designate as confidential essentially all documents filed by parties with the GRC, which the GRC characterizes as “Denial of access complaint submissions.”  Since anything filed by a party in a GRC case is related to a denial of access complaint, this would essentially insulate GRC filings from public access. Making matters worse, because the exception is in the form of a proposed regulation, the exception applies to records held by records custodians. Unlike Superior Court, where the default rule and practice in OPRA cases is that all filings are publicly accessible, GRC filings will become secret, which seems to be the antithesis of the purpose of OPRA.

The GRC is accepting comments on these proposed regulations through July 15, 2022.