The Supreme Court recently issued a new opinion dealing with OPRA’s section that defines what is a public agency that’s subject to OPRA. The Court held that the County Prosecutors Association of New Jersey (CPANJ)–501(c) nonprofit made up of the 21 county prosecutors– is not a public agency under OPRA. The Court also held that CPANJ is not a public entity whose records are covered by the common law. ACLU v. CPANJ.

The Court determined that CPANJ is not (per OPRA’s definition of a covered public body) an “instrumentality” created by “political subdivisions.” The “core question” here was whether a county prosecutor is a “political subdivision.” The Court concluded (as did the Appellate Division) that a prosecutor is not a political subdivision, so CPANJ is not a public agency within the meaning of OPRA.

Significantly, the Court rejected the argument that CPANJ is covered by OPRA because it engages in governmental law enforcement functions. The Court emphasized that OPRA’s definition of a covered entity does not have a “governmental function test.” The only question, said the Court, is whether an entity falls within the language of OPRA’s definition of a public agency.

When I wrote about the Appellate Division’s decision in this case, I commented that the requestor’s effort to obtain records from CPANJ was actually unnecessary, given that it could use OPRA to seek from prosecutors’ offices, the Attorney General’s Office, or any other public agency these agencies’ communications with CPANJ. The Supreme Court alluded to this point in its opinion, noting that the “decision affirming the dismissal of the ACLU’s OPRA claim against CPANJ does not preclude the ACLU from requesting the same categories of documents from one or more public agencies subject to OPRA.”