Transparency plays a critical role in building trust between the police and the community. When members of the public trust the police, they are more likely to follow their commands, cooperate with criminal investigations, and even advocate for more funding for police. When police resist transparency, community trust is seriously undermined. Secrecy also makes it harder to hold police departments accountable and assure that they are complying with the law and meeting the high standards that we set for them. This is why we have been involved in dozens of cases involving police ...
OPRA’s personnel records exemption, N.J.S.A. 47:1A-10, renders most personnel records generally exempt from access under OPRA. The exemption contains three exceptions, however.
Exception 1
The first exception provides that:
“an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record.”
This provision obviously means that requests for an employee’s individual paystub or an agency’s weekly, monthly, or year-end payroll ...
Each month, we receive dozens of inquiries from people who are upset that their OPRA requests were denied. The most frequent basis for denial is that the request is invalid as written. Although there are records custodians who will happily work with the requestor to fulfill a less-than-perfect request, other custodians will quickly deny any request that does not strictly comply with OPRA’s requirements. A valid OPRA request is thus the critical first step to obtaining public records and it is important to draft a request that follows some basic guidelines.
Guideline 1: Do not ask ...
Many people want to know how they can monitor an agency's spending and determine how much an agency is paying a certain vendor (such as a law firm, plumber, construction company, or insurance company) or even who the agency's vendors are. A "Vendor Activity Report" (or "Vendor History Report") is a very helpful tool for learning this information.
A Vendor Activity/History Report details all payments made to every individual or company that was entered into the agency's accounting software in order to receive a payment. If a bill is paid, then there is a corresponding "vendor" entry in ...
CJ Griffin, a member of Pashman Stein Walder Hayden's Media Law Group, was interviewed by Marketplace regarding a prior OPRA lawsuit she brought against the City of Newark seeking its Amazon HQ2 bid.
The public radio program, “What's in Those Amazon HQ2 Bids? It's Not Entirely Clear” by Renata Sago and Leila Goldstein, aired on Tuesday, November 6th.
“There’s hundreds of millions or billions of dollars, of tax dollars, at stake," said CJ Griffin, a partner at Pashman Stein Walder Hayden, who argued the case. "That’s taxpayer money. When you give tax breaks, that impacts ...
This week, the New Jersey Supreme Court issued a split decision (4-3) in Paff v. Ocean County Prosecutor’s Office and once again ruled that dash camera videos that pertain to criminal investigations are not subject to the Open Public Records Act (OPRA).
While the decision is a serious disappointment to transparency advocates, it does not actually change the status quo. Last year, in North Jersey Media Group Inc. v. Township of Lyndhurst, a unanimous Supreme Court ruled that the dash cam video of a police-involved deadly shooting was not subject to OPRA because there was no Attorney ...
On June 4, 2018, the Appellate Division issued an unpublished OPRA opinion titled Benedetto v Russo and Union County. While the opinion is not binding on lower courts because it is unpublished, we think it is helpful in several ways.
First, the case involves very important records: incident reports regarding suicide and suspicious deaths within a County Correctional Facility. Given the widespread coverage regarding several deaths in the Hudson County Jail recently, it is important that the public has access to information about these deaths and the conditions inside the jail.
In ...
Government agencies often distribute surveys to the public regarding various issues of public concern. Are the completed surveys subject to public access under OPRA? We think so and a court is being asked to decide.
Recently, we learned of an OPRA lawsuit filed by a requestor who seeks the results of a survey that was sent to residents of the Borough of Saddle River. The survey, which was sent by a local veterinarian who serves on the Borough's Non-Lethal Deer Population Control Committee, asked residents whether they would allow access to their property to carry out a non-lethal deer ...
Last week, the Appellate Division issued a published decision that is very important to transparency. While the court's analysis of its standard of review over GRC decisions will excite appellate attorneys, it is the more substantive portion of the court's decision that grabbed our attention.
The case is Conley v. N.J. Dep’t of Corrections, ___ N.J. Super. ___ (App. Div. Jan. 12, 2018), and it involves an OPRA request that was filed by Kevin Conley, an inmate at the New Jersey State Prison.
Mr. Conley's OPRA request sought “monthly remedy statistical reports” that were required ...
In this third part of our series about using OPRA to monitor police agencies, we will discuss how to ensure that individual officers meet the qualifications for their duty assignments and are properly trained.
Generally, personnel records are exempt from access under OPRA. However, we previously blogged about the personnel records exemption and explained that there are three exceptions. The third exception provides that the following records are accessible:
data contained in information which disclose conformity with specific experiential, educational or medical ...
OPRA permits agencies to withhold most criminal investigatory records, but requires them to disclose certain enumerated information to the public:
if an arrest has been made, information as to the name, address and age of any victims unless there has not been sufficient opportunity for notification of next of kin of any victims of injury and/or death to any such victim or where the release of the names of any victim would be contrary to existing law or court rule. In deciding on the release of information as to the identity of a victim, the safety of the victim and the victim's family, and the ...
Personnel records are a category of government records that shine significant light on the workings of government (including misconduct and corruption), but unfortunately our Legislature made most personnel records off limits when it enacted OPRA. So, what records can you get?
Section 10 of OPRA makes personnel and pension records generally off limits, but it provides three exceptions. Today, we will discuss the first exception.
The first exception provides that: “an individual's name, title, position, salary, payroll record, length of service, date of separation and the ...
In enacting OPRA, the Legislature created two exemptions for police records. The first exemption is the “ongoing investigation exemption.” N.J.S.A. 47:1A-3(a). For that exemption to apply, an investigation must be ongoing and the police agency must prove that release of the records would be “inimical to the public interest.” Even if the police do prove that releasing the records while the investigation is ongoing would be harmful, ultimately the records must be released after the investigation concludes.
OPRA’s other exemption, the “criminal investigatory ...
OPRA requires public agencies to respond within 7 business days of your request. (Tip: Begin counting the first business day after you filed the request). A public agency must respond within 7 business days and either: 1) Produce responsive records; 2) Tell you that access is being denied and reason for the denial; or 3) Ask for an extension of time to respond.
But what do you do if the government fails to respond (a deemed denial) or denies access to a record that you know is not exempt?
The best course of action is to immediately speak to an attorney, who can work with you to gain access to the ...
Pursuant to Section 5 of OPRA, a public agency must state the “specific basis” for denying access to government records. Those who request records frequently, however, know that it is not uncommon for a public agency to issue a blanket denial when you’ve requested a volume of records, rather than telling you specifically why each requested record is being withheld. Yesterday, a court awarded attorneys fees to Pashman Stein in litigation against a public agency who had refused to tell Plaintiff John Paff whether there were records responsive to his request and instead kept ...
Update: We have written extensively about this topic since this blog was published in 2015 and have filed successful suits for Facebook records. For updated content, click here, here, and here.
As the number of public agencies with a social media presence grows, questions arise regarding whether the content of the social media sites is a “government record” subject to OPRA. We believe that it is.
OPRA defines government records very broadly and includes “information stored or maintained electronically.” This should cover posts made on a public agency’s official ...
It’s Sunshine Week– a national initiative to promote a dialogue about the importance of open government and freedom of information. This week on the blog we will feature some of Pashman Stein’s clients who are open government activists or journalists and highlight some proposed changes to the New Jersey Open Public Records Act (OPRA) that are currently pending in the Legislature.
Today we feature Collene Wronko, an open government and animal rights activist from Middlesex County. Ms. Wronko and her husband, Steve, have led a group of dedicated activists who have used OPRA to ...
News broke this week that Hillary Rodham Clinton exclusively used her personal email account to conduct government business while she was Secretary of State. Unfortunately, this practice occurs quite frequently at the local levels of government and it has the potential to undermine government transparency, as it allows public officials to conduct public business behind closed doors. New Jersey’s Open Public Records Act (“OPRA”) is broad enough, however, to require such emails to be produced.
OPRA defines a “government record” as any document (including ...
Whether a public agency can charge for records provided in response to an OPRA request depends on the circumstances. There are important guidelines to remember.
- Electronic copies of records should ordinarily be free of charge, so most requestors seek them in that format. When making your request, simply ask that the records be emailed to you.
- If a requestor wants a hard copy of a record, the public agency may charge 5 cents per letterhead size copy and 7 cents per legal paper size copy. A public agency may not charge more unless they can prove that their “actual costs” are higher.
- If the ...
It is common that a requestor will seek a record that is required by law to be made. Thinking that she is being helpful to the Records Custodian and making her request clearer, the requestor will often cite the particular law when making her request. Requestors who do this should be careful, as Records Custodians will often deny the request on the basis that it requires them to perform "research."
A good example of this issue occurred in the case Bart v. Passaic County Public Housing Agency, 406 N.J. Super. 445 (App. Div. 2009). There, the requestor (Bart) sought "signs currently posted in ...
Often, public agencies deny requests for records relating to misconduct or crime and claim that the records are part of an “investigation in progress” and therefore not subject to OPRA. It is true that OPRA does provide an exemption for ongoing investigations, but it is important to know how this exemption is applied.
First, OPRA specifically states that ongoing investigation does not apply to records that were “open for public inspection, examination, or copying before the investigation commenced.” N.J.S.A. 47:1A-3a. This means that a video recording that recorded a ...
Most public agencies have adopted official OPRA Request Forms that they place on their websites. For frequent requestors, filling out the official form each and every time a request is made can be time consuming so many opt to send their requests in the body of an email to the records custodian. According to New Jersey case law, this is perfectly acceptable. In Renna v. County of Union, 407 N.J. Super. 230 (App. Div. 2009), the Appellate Division held that no public agency may deny an OPRA request simply because the requestor did not use the agency’s official OPRA Request Form. However, a ...
Many people ask whether the emails sent to or from a public employee or public official are subject to the Open Public Records Act (OPRA). The answer is yes – email correspondence is subject to OPRA if government business is discussed or conducted. That is true even if the public employee or official uses a private email account.
The Government Records Council has held that a valid request for emails requires the following:
- Date range. Note that the range must not be overbroad—requests for months or years of emails may very likely be held to be too broad.
- Subject matter. We recommend ...
When a dispute involves a public agency, public property, or public resources, the Open Public Records Act (OPRA) can be an important information gathering tool, whether a lawsuit has already been filed or a party is simply gathering facts necessary to draft the complaint and initiate the litigation. Thus, OPRA is frequently used as a litigation tool by those who do business with public agencies or those who purchase or lease public property, such as construction companies and real estate developers.
Our courts have found that it is perfectly acceptable to use OPRA in lieu of written ...
Per OPRA, public agencies must respond to a request for records within seven business days. But what do you do if the government fails to respond (a deemed denial) or unlawfully refuses to grant access to the records?
The best course of action is to immediately speak to an attorney, who can work with you to gain access to the records. This frequently requires a lawsuit filed in Superior Court. The most important thing to remember is that your action must be filed within the statute of limitations, which is 45 days. The process for filing in Superior Court is as follows:
- A Verified Complaint and ...
