Overview

• Lack of training for officers
• Interference from politicians
• Strong appeals process

In theory, New Jersey’s public records law, the Open Public Records Act (OPRA) is pretty good. It gives agencies seven days to respond to a request, details penalties against agencies that actively withhold information, and allow anyone to request records. In practice, it’s a different story. According to Harry Scheeler, an auditor of New Jersey agencies compliance with OPRA, “a lot of times you find, unfortunately, OPRA custodians who have no idea what they were doing, who have never been to a training presentation.” This can lead to denied requests or withheld information in a full realization of Hanlon’s razor: don’t attribute to malice that which can be explained by incompetance.

In some cases, though, malice can explain interference with the law. Scheeler says that in his experience, “a lot of the time it’s not even government employees who are interfering with this right; it’s politicians and attorneys.” Unfortunately, that’s not surprising given the state’s reputation for political corruption, from its top offices to its most local officials, the most infamous example being the Christie Administration’s closing of the George Washington Bridge.

Fortunately, a very bright side of New Jersey’s law is its robust appeals process. Upon denial of a request or the improper withholding of information, either an informal complaint may be filed with the state’s Government Records Council (GRC) or a formal proceeding may be filed with the state’s Superior Court, but not both. Any decisions reached by either body can be appealed again, to the Appellate Division of the Superior Court. This gives requesters the ability to override unfair or inappropriate denials and withholdings by New Jersey’s agencies. While agencies and officials may get in the way of records requests, OPRA gives requesters plenty of room to push back. A familiarity with the appeals process and a willingness to pursue appeals of denials and withholdings can go a long way towards releasing records.

The Law

• 7-day response time
• Legislative records exempt
• Thorough appeals process

The Details

Can you submit a request if you’re not a resident?

Yes, but could be rejected by a nitpicky agency because the law uses language regarding “citizens of this State.” However, the Government Records Council notes that, “the Attorney General’s Office advises that OPRA does not prohibit access to residents of other states” and that requests may be filed anonymously, as long as they are not for the records of victims.

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, and any limitations on the right of access accorded by P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented, shall be construed in favor of the public’s right of access;

To whom does this apply?

Executive?

Yes. However, the Office of the Governor has the power through executive order to prevent records they deem “classified” from release.

Judicial?

Yes.

Legislative?

No.

Is there a designated records custodian?

Yes.

“Custodian of a government record” or “custodian” means in the case of a municipality, the municipal clerk and in the case of any other public agency, the officer officially designated by formal action of that agency’s director or governing body, as the case may be.

Who is exempted?

Any documents prepared by or for a member of the State Legislature, and the Office of the Governor in certain cases where they deem the information requested to be confidential.

How can requests be submitted?

In-person?

Yes.

Verbally?

No.

By mail?

Yes.

By email?

Yes.

How long do they have to respond?

7 Days.

Are there provisions regarding the extension of response times?

Only if more time is needed to collect records. However, some kind of confirmation of the request should be received in the first 7 days.

Does the agency have to give you a tracking number or estimated date of completion?

No.

Can they ask why you ask?

No.

What enforcement?

A public official who “knowingly and willfully” violates OPRA will be penalized through fines or discipline.

A public official, officer, employee or custodian who knowingly and willfully violates P.L.1963, c.73 (C.47:1A-1 et seq.), as amended and supplemented, and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty of $1,000 for an initial violation, $2,500 for a second violation that occurs within 10 years of an initial violation, and $5,000 for a third violation that occurs within 10 years of an initial violation. This penalty shall be collected and enforced in proceedings in accordance with the “Penalty Enforcement Law of 1999,” P.L.1999, c.274 (C.2A:58-10 et seq.), and the rules of court governing actions for the collection of civil penalties. The Superior Court shall have jurisdiction of proceedings for the collection and enforcement of the penalty imposed by this section. Appropriate disciplinary proceedings may be initiated against a public official, officer, employee or custodian against whom a penalty has been imposed.

Fees?

Electronic copies should be provided without a fee, however a fee can be charged for the transmission medium the electronic copy is sent by (CDs, DVDs, etc.). For paper copies: * first page to tenth page, $0.75 per page; * eleventh page to twentieth page, $0.50 per page; * all pages over twenty, $0.25 per page.

Are there fee waivers for media requests or those made in the public interest?

No.

Attorney’s fees - Can you win them?

Yes.

Exemptions and Appeals

What exemptions exist?

• Legislative records
• Medical examiner records
• Criminal investigation
• Victims records
• Trade secrets and proprietary information
• Attorney client privilege
• Computer security
• Building security
• Security measures and techniques
• Advantage to bidders
• Public employee related
• Risk management
• Court orders
• Honorable discharge certificates
• Personal identifying information
• Higher education exceptions
• Biotechnology exemption
• Limits to convicts
• Ongoing Investigations

Do they have to tell you why a portion or pages were redacted or withheld?

Yes.

To whom does the appeal go?

A complaint may be filed with the Government Records Council or a proceeding may be instituted with the state Superior Court, but not both.

How much time do you have to appeal?

No deadline for filing a complaint to Government Records Council, but there is a 45 calendar day deadline for instituting a proceeding with the Superior Court.

Can you appeal a delay?

Yes. Failure to respond in 7 days is considered a denial of the request and can be appealed.

Do agencies have to tell you where to send your appeal?

No, but appeals are centralized in those two institutions.

What if your appeal is denied?

You have 45 days to appeal the decision to the Appellate Division of the Superior Court

Where else can you turn?

Nowhere, but IMO multiple levels and places to appeal is pretty decent.

Are all appeals kept officially?

Hard to say for sure.

Resources

Organizations

The following organizations offer resources for those seeking public records in New Jersey.

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Attorneys and Law Firms

The following attorneys and law firms have practiced public records law. Names marked with an asterisk have indicated a willingness to offer pro bono services on a case by case basis.

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Successful appeals

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News Stories on Public Records Laws in the State

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Blogs and feeds primarily focused on public records in New Jersey

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Public Records Guide and Advice

• A guide to OPRA compiled by New Jersey’s Government Records Council
• Government Records Council OPRA FAQ

Newsletters

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Big FOIA wins

Have a public records success story? Let us know!