Explainer: Shedding Light on New Jersey’s Open Public Record Act

Colleen O'Dea | March 18, 2014 | Explainer, More Issues
Law meant to ease access to government documents has nearly three-dozen exceptions and lots of loopholes

explainer button shadow
The Open Public Records Act is the state law that governs access to government records in New Jersey, including how to obtain records, how much government bodies are allowed to charge for copies, and which records are exempt. It was passed in 2002 as a means of strengthening the state’s Right to Know law.

The law states that documents made, maintained or kept on file or received in the course of official government business should be considered public and must be provided to a requester.

Exceptions to the rule: However, the law outlines 24 classes of records that are exempt from public perusal, and New Jersey governors have exempted 11 other types of records through executive order. Among the exemptions: interagency or deliberative materials, crime victims’ records, documents covered by attorney-client privilege, employees’ sexual harassment complaints or grievances, and security-related documents.

How the law works: New Jersey has created a model OPRA form. Many municipalities use that form or one they created, but people can also request records by simply writing a letter. Requests can also be made using an online form, when available. Once a request has been placed, the records custodian of a given agency is supposed to respond to the request as soon as possible, but no later than seven business days later, either making the documents available or explaining why it will take more time to provide the documents or why they will not be provided. Some records, including budget documents, bills, vouchers and contracts, are supposed to be available for inspection immediately.

Getting records: Inspection of documents is free and documents that can be emailed or faxed are also free. To get paper documents, it can cost 5 cents to 7 cents per page for copies. Agencies can charge the “actual costs” for some requests, if they will be more expensive than specified by law or will require additional computer processing time and will be provided on CD or DVD.

Denials: Whenever an agency denies a request for public records, the custodian must provide the requester with a reason for the denial and information about how to lodge an appeal.

Appeals: There are two ways to appeal a denial: through the Government Records Council or through the court system.
The GRC process is free, but it can take a year or longer for an appeal to be settled. By appealing through the GRC, a requester may go through a mediation process, in which council staff attempts to work with both requester and agency to settle the issue. If that does not resolve the denial, the case will go before the council.
A court appeal costs money – there’s a filing fee, and attorney costs if a person uses a lawyer — but can lead to a quicker resolution. Should a citizen win an appeal, he or she may also be reimbursed for court costs.

Penalties: A custodian who is found to have knowingly and willfully violated OPRA in denying access to records faces fines ranging from $1,000 for a first offense to $5,000 for a third violation, though such fines are rarely imposed.

Caveats: While the system seems straightforward in theory, it is often the opposite in practice. That’s due in part to the language of the law and in part to the different ways in which records custodians interpret and carry out the law.

One of the problems is that OPRA applies to records, not information, so people seeking answers to questions may not get them unless they request the specific records in which those answers are located.

According to the spirit of the law, custodians should try to help fulfill requests that may be vague or when a requester does not know the exact name of a document, but not doing so is not considered a violation of the law.

Document denials stating that a request was overly broad or that requested records do not exist are among the most common reasons for a denial.

GRC appeals can take a long time if there is a lack of a quorum on the council. The council is supposed to have five members. Two of them include the state commissioners of education and community affairs or their designees; one or the other often has to sit out because of a conflict of interest — if a school district or municipality is involved. There are three public members — and one of those seats is currently vacant.

According to the GRC’s 2012 annual report, only three of every 10 complaints filed that year were heard and closed, while 70 percent remained open.

While OPRA was meant to make it easier for people to get public documents, it can sometimes be easier to get records by filing a common law right-of-access request. People may assert a common law right for access to records that are written and were made by a public official authorized to create them. Common law open records must be disclosed unless the state’s interest in keeping them private outweighs the public’s interest in making them public. Denials of a common law right-to-access request can only be settled in the courts.