Category Archives: New statutes

Don’t Overlook These Beneficial Changes Made In The OPRA Reform Law

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The provisions of the recent OPRA amendments that have gotten the most attention are new sections dealing with attorney fee awards, commercial requests, and authorization of suits against requestors who seek to interfere with government operations. These are important, but today I want to focus on other significant revisions that have been somewhat under the radar.

Over the years, OPRA’s unclear language, or in some cases, the absence of language, caused several problems in implementing the statute. The new law addresses many of these issues. Here are a few examples of these beneficial changes:

-Since OPRA’s original enactment, it’s been unclear whether the statute’s privacy provision required custodians to redact individuals’ personal information, particularly home addresses and personal email addresses, from government records. This ambiguity led to much litigation over the years, and as I’ve often noted, the case law has not resulted in much clarity. The new law resolves this problem by expressly stating when address information must be kept confidential. And the statute specifically overturns the Supreme Court’s untenable interpretation of the privacy section in the Bozzi case, where the Court determined pet owners have no expectation of privacy when they apply for a pet license, and therefore their home addresses must be disclosed.

-Custodians constantly struggle with responding to overly broad requests that don’t identify specific records, and instead require custodians to conduct research to satisfy the request. Although the courts have consistently stated that such a request is invalid, requestors keep making this type of request. The amended statute now expressly says that requests involving research are invalid, and more specifically defines what’s needed for a request to be valid.

-One of the most problematic aspects of the courts’ interpretation of OPRA has been that a person who is litigating against an agency, with the opportunity to obtain agency records through discovery, is allowed to separately submit an OPRA request with that agency, seeking the same records. The new law expressly precludes litigants from doing this.

-Unlike all other state agencies (and the courts), the GRC does not have a deadline for a requestor to file a complaint with the GRC, giving a requestor an unlimited amount of time to challenge a custodian’s OPRA request. The statute resolves this absurd situation, imposing a 45-day period for filing GRC complaints.

The Amended OPRA Law Means Some New Work for Custodians

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A primary purpose of the recently-enacted amendments to OPRA is to make OPRA compliance by public bodies more efficient and less costly, thereby saving taxpayers’ money. Various provisions in the new law are aimed at this objective. For example, there are some new exemptions from what is a government record; there’s language that enables custodians to refer requestors to a website for the documents sought; and there are sections permitting the denial of duplicative requests as well as requests for records that are also the subject of discovery in litigation.

But the law also potentially creates a lot of new work for custodians. I’ll delve into these in detail in subsequent posts, but here are a few examples:

-Custodians must ensure they’ve redacted from records “personal identifying information,” which covers several additional types of information, such as credit and debit card numbers, bank account information, month and day of birth, telephone numbers, the street address of a person’s home, and a personal email address.

-Metadata is exempt, except for the “portion that identifies authorship, identity of editor, and time of change,” so custodians will have to take the time to go through metadata to identify this public information.

-OPRA now says that government records “shall be made available to the public on a publicly available website to the extent feasible,” and the custodian must provide the requestor with directions to assist in finding these records on the website.

-There are new requirements for fulfilling requests for a “commercial purpose.” Such requests must be answered within 14 business days, but if a commercial requestor would like to receive the record within 7 business days, the custodian must provide the record, and may charge a special service fee for it.

In addition to creating new work, I anticipate that these and other new provisions in the statute will generate legal disputes as well. I’ll discuss potential legal issues posed by the legislation in future posts.

Legislature Restores 7-Business Day Deadline for Responding to Most OPRA Requests

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In March 2020, due to the Covid-19 pandemic, the Legislature amended OPRA to provide that the 7-business day response deadline did not apply to OPRA requests during this public health emergency. Today, Gov. Murphy signed into law legislation that repeals this provision for most requests.

The legislation in question contains a number of provisions dealing with the Covid crisis. One section restores OPRA’s normal response deadline for requests. The section has one exception: “requests made for records related to the COVID-19 response” continue to be covered by the 2020 statute’s language removing the 7-day deadline requirement.

New “Mugshot Extortion” Law Raises OPRA Issues

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In a recent post, I noted that it’s not clear whether mugshots are public records under OPRA–although these photos are routinely posted online, the GRC has held them to be exempt under OPRA, and the federal courts have held that privacy precludes their release under FOIA.

The other day the Governor signed legislation that makes the answer to this question even less clear. The new statute seeks to stop what it calls the “extortionate” practice of websites that publish mugshots and charge people for removing them from the internet. Specifically, the legislation prohibits soliciting a “pecuniary benefit” in exchange for refraining from disclosing criminal history information about a person, including a mugshot.

Although this statute doesn’t mention OPRA, it states that “the law authorizes public access” to this type of information. But the statement that mugshots are public is contradicted by other language in the statute, which recognizes that privacy rights are affected by publication of mugshots and that people should not have to pay for removal from the internet of this embarrassing information.

This new statute puts OPRA custodians in a difficult position. They are faced with having to reconcile the legislative indications that mugshots are both publicly accessible and subject to the expectation of privacy.

New Legislation Makes Port Authority Subject To OPRA

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Although the Port Authority of New York and New Jersey makes its records publicly available under its freedom of information policy, as a bi-state agency it has not been subject to OPRA and New York’s Freedom of Information Law. New Jersey and New York recently enacted legislation intended to provide that the Port Authority is covered by both states’ open records statutes.

A few days ago, Governor Christie signed legislation which states that the Port Authority is an agency subject to OPRA as well as New York’s Freedom of Information Law, and New York enacted a law several months ago which similarly provides that the Port Authority’s records are covered by both states’ statutes.

Implementation of the two new statutes will raise a number of issues and require the Port Authority to consider changing some of its freedom of information procedures. As one example, OPRA’s fee for paper copies is only 5 cents per page, while the Port Authority’s copy charge has been 25 cents per page.

In addition, the disparity between the requirements of OPRA and New York’s records law will result in difficult legal questions. New York’s statute says that where there is an inconsistency between the two states’ public record laws, “the law of the state that provided the greatest rights of access” on the new law’s effective date shall apply. A similar provision was removed from the New Jersey legislation based on the conditional veto of the Governor, who pointed out that this language requires each state’s courts to interpret the law of the other state.

However, the Port Authority will have to review each state’s law in dealing with certain record requests, in view of the risk of facing litigation in New York under the “greatest rights of access” requirement. And if a challenge to such a determination is brought in New York, that state’s courts will have to interpret OPRA.

It will be interesting to see what effect, if any, such New York court opinions will have on New Jersey courts’ review of OPRA issues.