The ability to obtain public records in New Jersey is about to undergo a massive overhaul. A new bill, S2930 (the “Reform Bill”), was signed into law by New Jersey Governor Phil Murphy on June 5, 2024, and has the potential to make it more difficult for requesters to gain access to certain government records.
Numerous critics have pointed out that the controversial move to pass the Reform Bill places limits on government transparency and invites corruption in the state. Governor Murphy’s response remains that the Reform Bill takes these concerns into account and aims to streamline the current public records request process by imposing much-needed limitations and modernizations. The Reform Bill will take effect 90 days after it is signed into law.
New Jersey’s reform bill is not the only open records law introduced recently. Several different states, including Utah, Louisiana, and Michigan, have introduced and, in some cases, passed different types of government transparency bills in their respective state governments. However, the level of transparency varies: some of these bills limit access to public records, while others introduce greater public transparency.
The New Jersey Open Public Records Act (NJSA 47:1A-1 et seq.) (“OPRA”), enacted in 2002, was initially signed into law in an effort to improve public access to government records. The goal was to increase transparency and improve communication between the public and the government and, up to this point, OPRA has been frequently used by the media and legal fields. The process under OPRA requires the submission of a public records request (an “OPRA Request”) to the appropriate department (for example, the New Jersey Department of Health). The OPRA application is then reviewed by the appropriate government entity, which determines whether appropriate records are available for public review. Once it is determined that there are records that need to be transmitted, copies are provided to the requester. Electronic copies are provided free of charge, while physical copies are charged at a rate of $0.05 per letter-size page and $0.07 per legal-size page. The government may charge all shipping costs.
The types of records most often made available in response to OPRA requests include non-confidential information such as settlement agreements, budgets, change of ownership notification documents, consulting agreements, and numerous types of correspondence. However, government employees who review and respond to requests are understaffed and have a backlog of requests. OPRA was written and put into practice before the Internet age we live in today. So, as originally written, OPRA did not take into account the number of documents that are scanned and saved every day, which must be identified and reviewed for each request, nor did OPRA take into account the number of requests that can be submitted without problems.
The reform bill extends the deadline for government officials to respond to OPRA requests and requires the applicant to narrowly tailor their request. For example, requests for emails or correspondence should be extremely specific and include a discrete and limited time period, the specific subject matter, and the names and/or titles of government employees. Otherwise, such requests may be denied immediately. All documents provided in response to OPRA requests must also be redacted to remove any personal information from government officials. This update is in line with Daniel’s Law (NJSA § 56:8-166.1), a statute passed in 2020 that prohibits publishing addresses or telephone numbers of certain “covered persons,” generally government officials and their families, to protect them from public. harassment or threats. Under the reform bill, the respondent has more latitude in determining the fee for providing physical copies and may impose a reasonable service charge, along with additional fees based on the actual direct cost of providing the copies. Additionally, OPRA requests that do not include the applicant’s name, address, email, and phone number may be rejected. While anonymous requests cannot be denied, anonymous requesters will not have the ability to challenge a denial, which may lead to government agencies rejecting anonymous requests.
Finally, the Reform Bill incentivizes government entities to digitize more paper records and introduces new avenues for regulators to file complaints against requesters who act with the intent to harass or substantially disrupt government function. This would allow government officials to use their own reasonable discretion when responding to frivolous or harassing requests. Unfortunately, this can have negative impacts on requests submitted for legal purposes, especially in the context of transaction due diligence and litigation document requests.
While OPRA remains strong in New Jersey, requests for “all documents and correspondence relating to” a given topic are likely to be denied. Applicants will have to tailor their applications strictly, which may lead to a smaller universe of responsive documents.
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