Client Alert: Proposed Changes to the Open Public Records Act (OPRA)

The New Jersey Legislature is currently considering a bill (S-2930) that would substantially overhaul the Open Public Records Act, N.J.S.A. 47:1A-1 et seq. This legislation would have consequences for both citizens and municipal records custodians alike, and have galvanized many interested parties on both sides of the debate.

One revision that illustrates the divide would amplify OPRA’s general privacy provision. Under current law, N.J.S.A. 47:1A-1 provides as follows:

“a public agency has a responsibility and an obligation to safeguard from public access a citizen’s personal information with which it has been entrusted when disclosure thereof would violate the citizen’s reasonable expectation of privacy . . . .”

This provision has been interpreted by our courts to prevent the disclosure of certain personal information such as personal e-mail addresses that are submitted to receive online alerts.

The new bill would amplify the privacy exception and provide that public agencies additionally may withhold disclosure “when the public agency has reason to believe that disclosure of such personal information may result in harassment, unwanted solicitation, identity theft, or opportunities for criminal acts.”

While this provision may allow public entities to deny OPRA requests that implicate materials that may be sensitive to the average citizen but are not covered by a current OPRA exception and therefore must be produced, many advocates have criticized this additional clause as being ambiguous and potentially too much leeway in denying disclosure requests.

What are other changes from the original OPRA provisions to the proposed amendments?

• Public agencies would be liable for OPRA violations, rather than personal liability upon the records custodian.
• Legal fees would become discretionary rather than mandatory. The relevant provision provides that an aggrieved requester “may” be entitled to legal fees if found to have “knowingly and willfully” violated OPRA or unreasonably denied access. Under current law, a denial of access is sufficient to recover counsel fees.
• The bill would limit OPRA requests for e-mails, telephone calls, texts, correspondences, and social media postings to a “discrete and limited” time period, for a specified individual, and for a specific subject matter. The bill would provide that custodians do not need to comply with such requests that “require research” and the “collection of information” from government records resulting in the “creation of new government records.” The bill would also exempt requests for call, text, and e-mail logs, as well as individual’s calendars.
• The bill would provide that notes generated and used to prepare final reports, documents, and records are exempt draft materials.
• The bill would exempt from disclosure “detailed or itemized cost estimates prior to bid opening” and “information related strategies or negotiating positions that would unfairly prejudice or impair contract negotiations.”
• The bill would require OPRA requests to be submitted using the public agency’s form.
• The bill would prevent anonymous requesters from filing a challenge at the GRC or Superior Court.
• The bill establishes an elongated review period and parameters for “commercial purpose” requests and would prohibit OPRA requests from individuals or entities defined as “data brokers.”
• The Superior Court could issue protective orders against serial OPRA requestors.
• Custodians or government officials that make a “reasonable effort” to comply with an OPRA request are “presumed to have acted without willful, purposeful, or reckless disregard of the law.”
• Elections – Election officials would be required to provide the following documents for “immediate access” within specified time periods before and after election deadlines:
  • Voter registration forms and change of registration forms
  • Party affiliation forms and changing of affiliation forms
  • Applications for vote-by-mail
  • Forms or reports submitted to Election Law Enforcement Commission
  • Nominating petitions for any candidate
  • Petitions to recall an elected official
  • Petitions or submissions for public referenda
  • Any addendums, to the aforementioned documents
• The bill would overhaul the Government Records Council, including overhauling its membership, allowing the Governor to make initial direct appointments to same and affording commissioners with salaries. Eighteen months after the bill’s enactment, the GRC would be required to adjudicate complaints within 90 days, subject to a 30-day extension.
• The provisions of the new law are to apply retroactively, except that they shall not reduce any past statute of limitations.

We will continue to monitor as the OPRA legislation progresses through the Legislature and keep our clients informed accordingly.

If you are an individual or public entity seeking representation relating OPRA, please call King, Moench & Collins. Michael L. Collins, Esq. is a municipal attorney that also provides representation to private clients on issues involving OPRA. Mr. Collins may be reached at 732-546-3670 or mcollins@kingmoench.com.

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