#12 Genova Burns’ 30th Anniversary Countdown of the Most Influential Cases, Events and Laws

The New Jersey Open Public Records Act (N.J.S.A. 47:1A-1 et seq), commonly abbreviated as OPRA, is the statute guaranteeing and providing a process for access to information with respect to public records in the State of New Jersey. It states that “government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest.”

In 2001, OPRA replaced New Jersey’s “Right to Know Law,” which directed the public’s access to government records in New Jersey. Specifically, OPRA is intended to:

• Expand the public’s right of access to government records;
• Create an administrative appeals process if access is denied; and
• Define what is and is not a “government record.”

“It seems as if the right of the public to hold government accountable is challenged on an almost daily basis. At the same time, OPRA regulation and the case law interpreting OPRA can be very confusing, despite the positive intent of the laws and the desire to preserve the fundamental rights of the public,” said Jennifer Borek,Partner at Genova Burns. “Regardless, the policy goals behind OPRA are important, and ensure that the public can access important details on the daily workings of government. Due to the potential complexities, the advice of legal experts can be invaluable when seeking public records and dealing with government agencies.”

REGULATORY SUMMARY:

The legislative goal of OPRA is to make government records, with certain exceptions, readily accessible to the public for inspection, examination, and copying. In plain language, a government record is a physical record that has a government purpose and is held by a public agency. Under OPRA, the “physical record” includes any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data-processed or image-processed document, and information stored or maintained electronically or by sound recording. A record held by a public agency has a “government purpose” when it has been “made, maintained, kept on file, or received in the course of official business.”

Public agencies falling under OPRA include:

•  All departments and agencies of state government, including state colleges and universities 
• All counties, municipalities, school districts, fire districts, county and municipal boards, commissions, agencies, and independent authorities
•  State legislature and its agencies, with the exception of most constituent correspondence and special materials prepared for individual legislators.

OPRA does not cover private businesses, not-for-profit organizations, and the state’s judicial branch and municipal courts, which have their own rules.

Generally, all government records are accessible to the public. These include public records such as the minutes of regular public meetings, budgets, bills, vouchers, and contracts, including collective bargaining agreements, individual employment contracts, and public employee salary and overtime information. Certain records are exempted because of the legal principle that citizens have a reasonable expectation of privacy, due to public safety concerns, and because of the need to ensure unfettered debate, discussion, and consideration of issues inside public agencies. Under OPRA, criminal investigative records in general are not available to the public.

Citizens who want to obtain public records under OPRA should contact the “custodian of records” of the public agency that holds the records they want. At the municipal level, that person will be the municipal clerk, and at other public agencies, that person will be an official designated by the particular agency or governmental unit.

When requesting a public record, the party needs to know what records they want and what government agency has them. The records request must include an accurate description of each specific record sought. In addition, all records requests must be in writing and must be hand-delivered, mailed, faxed, or “otherwise conveyed to the appropriate custodian.” The request cannot be made by telephone. Use of the Internet as a way to submit requests may be possible, if the government agency is equipped to process the requests. Traditionally, each agency has a records request form to be used to submit a request for documents.
Under OPRA, the custodian of government records must comply with the request “as soon as possible,” but no later than seven business days after the request is received. If the record is in storage or archived, the custodian will advise the requester of that fact within the initial request period and provide an estimate of when the record will be available.

If a request for a record is denied, the requesting party has two avenues of redress. They may file a suit in Superior Court or apply to the Government Records Council for relief. Reasons for denial reside in the exceptions to disclosure defined within OPRA, while others could be a failure to fill out the records request properly, failure to provide proper identification, or failure to meet established deadlines.