Business Improvement Districts Must Designate Records Custodians

Over the past few years, New Jersey courts have expanded the definition of “public agency” under the Open Public Records Act (“OPRA”) so that it covers more than what is traditionally thought to be a government agency (i.e. municipalities and state agencies). Through a series of cases, our courts have made it clear that non-profit corporations can be subject to OPRA if they serve as an “instrumentality” of a public agency.

Last week, the Hon. Judge Peter E. Doyne held that the Rutherford Downtown Partnership (“RDP”), a non-profit organization that manages the Borough of Rutherford’s Business Improvement District, is subject to OPRA. Most importantly, Judge Doyne’s decision addresses what steps such a non-profit organization must do in order to comply with OPRA.

Plaintiff Patricia Gilleran submitted a records request to RDP. After receiving no response within seven business days, CJ Griffin of Pashman Stein filed litigation on her behalf. In opposition to Plaintiff’s litigation, the RDP claimed it sent Plaintiff an email notifying her that it does not handle OPRA requests, that she must contact the Borough of Rutherford, that it would not forward her email to the Borough, and that she should not respond. Plaintiff certified that she never received this email.

Judge Doyne found that RDP’s alleged email was insufficient. He held that OPRA required the RDP to designate a records custodian and to forward Ms. Gilleran’s request to the custodian or to tell her specifically who the custodian is, rather than simply directing her to the Borough.

Records requestors should take away several things from this decision. First, the simple fact that an entity is non-profit organization does not mean it is not subject to OPRA. To determine whether the non-profit might be considered subject to OPRA, requestors should consider whether the mayor or town council appoints the organization’s board members; whether the non-profit’s budget consists heavily of “public funds;” whether the non-profit was created by local ordinance or state statute; and, the level of control a public agency exerts over the non-profit.

Second, when making an OPRA request to a non-profit organization, be aware that the non-profit must either forward your request to its custodian or specifically tell you the name of the custodian. If you do not receive a response within seven business days, it is imperative that you immediately contact an attorney to assist you in obtaining the records as the law allows only 45 calendar days from the date of denial to file a lawsuit in Superior Court.