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How To Use NJ Open Public Records Act To Get The Scoop

How To Use NJ Open Public Records Act To Get The Scoop

08 Sep 2014
Attorneys

Media & Entertainment and New Jersey Law360

Elected officials and government employees are often overly cooperative with media when the subject matter involves an issue near and dear to their hearts, advances their political talking points, or is otherwise beneficial to them. But, when the media is attempting to uncover scandal, government waste or potential wrongdoing, journalists often find that their requests for interviews and information are denied and that the elected official suddenly has “no comment.”

Unfortunately, there is no law that requires a public official to talk to the media, answer questions or provide information. When a formal request is made for access to a public record pursuant to the New Jersey Open Public Records Act (OPRA),[1] however, the law mandates that the public agency produce the record within seven business days. OPRA thus serves as an important fact-gathering tool for the media. Information contained within a public record could be the “smoking gun” that takes a reporter’s story to a whole new level.

Filing an OPRA Request

When making a request under OPRA, it is important to remember a few basic principles. First, while OPRA is broadly construed in favor of granting access to public records, there are certain records which are exempt from disclosure. OPRA provides a list of 21 types of records that are exempt from disclosure, among them criminal investigatory records not required to be made by law, records relating to an ongoing investigation, personnel records (with some exceptions), inter- or intra-agency advisory, consultative or deliberative materially (generally drafts of documents), records protected by court order, and records protected by the attorney-client privilege.[2]

Additionally, some records are exempt pursuant to executive order, such as job applicant records, fingerprint cards, illegitimacy records, and records that, if disclosed, would substantially impair the state’s ability to defend against sabotage or terrorism.[3] If a record is not subject to one of these exemptions, then it is accessible through a valid OPRA request.

Next, the request must be for an identifiable record, such as a contract, invoice, memorandum, check registry, paystub or email. It may not request information or ask the records custodian to conduct research,[4] compile data, answer questions or create a document that does not already exist.[5] This is one of the most common mistakes that requestors make, and it can be avoided by simply asking oneself, “What record might contain the information that I ultimately want?”

If one wants to write a story about OPRA, for example, an invalid request would seek “the total number of requests received from Jan. 1, 2014, to Aug. 1, 2014.” A valid request, on the other hand, would simply seek “a copy of your log sheet for all OPRA requests received from Jan. 1, 2014, to Aug. 1, 2014.” The former requires the records custodian to find a record, tabulate data and provide information, while the latter simply asks the custodian to produce a record and leaves the analysis of its contents to the requestor.

Additionally, the request must not be overbroad, as New Jersey courts have routinely held that a requestor cannot force the records custodian to conduct “open-ended searches”[6] of the agency’s files. Generally, this means that the request provides a narrow date range or asks for a specific subset of documents within a file. Generally, a request for “the entire project file” is too overbroad, so instead ask for specific records within the file or narrow the request by a date range. Likewise, a request for “All communications regarding Project X” lacks specificity and would likely be rejected by the records custodian. Instead, identify the type of communication (i.e. emails or letters), a date range, and the sender or recipient of the communication.

Finally, it is important to know how the public agency must respond to an OPRA request and what one can do if the records custodian fails to comply with the law. The custodian must provide a written response to an OPRA request within “as soon as possible, but not later than seven business days after receiving the request.”[7] That response should either enclose the requested records, state a lawful basis for denying access to the records, request an extension of time to comply,[8] or advise the requestor when a record that is in storage or archives can be made available.[9]

A failure to respond at all “shall be a deemed denial of the request.”[10] Where a request would “substantially disrupt agency operations,” the custodian is obligated to work with the requestor to find a reasonable accommodation rather than simply denying the request.[11] When a record contains confidential personal information (social security numbers, etc.) or information that is protected by the attorney-client privilege, the records custodian must narrowly redact the record to excise only that information and must provide the requestor with the reason underlying the redaction.[12] Requestors are entitled to “immediate” access to certain records, such as contracts, vouchers, and budgets.[13]

Responding to an Unlawful Response

If a public agency response to an OPRA request is unlawful, such as not responding to a request in writing, not granting access to records that are subject to an exemption, or not properly redacting records, a requestor can seek redress from either the Governments Records Council or the Superior Court of New Jersey.[14] As a general rule, the Superior Court is a far better venue because the case is is generally concluded within a couple of months, whereas cases before the GRC often take one to two years. OPRA provides a fee-shifting provision, which makes seeking relief from either forum plausible for small media entities, online journalists, or bloggers who cannot afford to pay an attorney an hourly rate.

Cases are initiated in the Superior Court by filing a verified complaint and an order to show cause within 45 days of the date of the denial or an otherwise unlawful response.[15] Each vicinage has an assigned judge who handles the OPRA cases. The judge will execute the order to show cause, which will provide a hearing date and a briefing schedule. These cases are heard on an expedited basis through a summary action proceeding, which means that generally there is no discovery or trial — a judge reads all pleadings, listens to oral arguments at the hearing, and issues a decision.[16] At all times, the public agency bears the burden of proving that its response was lawful[17] and OPRA is to be construed broadly in favor of the public’s right to access.[18]

If the judge determines that the custodian’s response to the OPRA request was unlawful, in most instances the public agency will be ordered to provide a lawful response. Generally, this means granting access to records. When a requestor’s lawsuit is the “catalyst” for such relief, the judge will declare the requestor to be a “prevailing party.” OPRA mandates an award of reasonable counsel fees where a requestor is a prevailing party.

OPRA is an important research tool for reporters. When a request is properly crafted, access should be guaranteed, so long as no exemption applies. Though public agencies do often wrongfully deny requests, OPRA’s fee-shifting provision levels the playing field so that requestors can find counsel who are willing to litigate the cases and help the requestor obtain the public records. Together, the media and OPRA serve as an important resource to the public for the promotion of an open, transparent government.

—By CJ Griffin, Pashman Stein PC

CJ Griffin is an associate in the access to public records practice at Pashman Stein in Hackensack, New Jersey, and the lead author of the firm’s OPRA blog.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] N.J.S.A. 47:1A-1, et seq.

[2] For a full list of exemptions, see N.J.S.A. 47:1A-1.1, -1.2, -2.2, -1.3a, -5k and -10 andhttp://www.nj.gov/grc/pdf/OPRAExemptions.pdf.

[3] Ibid.

[4] MAG Entm’t, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534 (App. Div. 2005).

[5] Bent v. Twp. of Stafford Police Dep’t, 381 N.J. Super. 30 (App. Div. 2005).

[6] MAG, supra, 375 N.J. Super. at 549.

[7] N.J.S.A. 47:1A-5i.

[8] There is no provision of OPRA that requires a requestor to grant the extension; however, if the records are not urgently needed it is good practice to cooperate and build a good rapport with the custodian so that future requests are handled properly.

[9] Ibid.

[10] Ibid.

[11] N.J.S.A. 47:1A-5g.

[12] Ibid.

[13] N.J.S.A. 47:1A-5e.

[14] N.J.S.A. 47:1A-6.

[15] Mason v. City of Hoboken, 196 N.J. 51, 57 (2008).

[16] Ibid.

[17] N.J.S.A. 47:1A-6.

[18] N.J.S.A. 47:1A-1.

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