1、The Open Public Records Act,New Jersey Government Records CouncilCatherine Starghill, Esq. Executive Director,Section I Understanding OPRA Section II OPRA in Practice Section III Complaint Process Section IV Special Issues Section V Exemptions in OPRA,Overview,Section I: Understanding OPRA,What is O
2、PRA?,Not Oprah the celebrity Open Public Records Act - N.J.S.A. 47:1A-1 et seq. Replaced the “Right to Know Law.” Increases publics accessibility to government records (cultural change in New Jersey). Broadly defines a government record. Provides compliance process via the GRC and NJ Superior Court.
3、 Provides for penalties to anyone who knowingly and willfully violates OPRA.,Non OPRA Requests,Not all records requests are OPRA requests! Requestor elects to invoke OPRAs provisions. OPRA does not affect common law right of access, or right of access via discovery. Challenges to common law requests
4、 and discovery request must be made to NJ Superior Court, not GRC. GRC cannot advise on process, fees, etc. regarding common law or discovery requests.,Who Can Request Records Under OPRA?,Anyone! Although OPRA states “citizens of this State,” the Attorney Generals Office advises that OPRA does not p
5、rohibit access to residents of other states. A requestor may even file an OPRA request anonymously.,What is the GRC?,GRC = Government Records Council. Duties listed in OPRA - N.J.S.A. 47:1A-7. Provides assistance to requestors and recordscustodians cannot provide legal advice. Adjudicates denial of
6、access complaints court alternative. No statute of limitations. Five-member Council & professional staff.,Limitations of GRCs Authority,GRC only has authority over access to records maintained by a public agency at the time of an OPRA request. No authority over accuracy of record content. No authori
7、ty over the condition of records. No authority over records retention Division of Archives and Records Management (DARM). See Circular Letter handout for specific e-mail guidance. No jurisdiction over the Judicial or Legislative Branches of State Government. No authority over other records requests
8、(administrative, common law, discovery). No authority over how a custodian uses his/her legal counsel. GRC cannot adjudicate a complaint currently pending or adjudicated in Superior Court. No authority over Open Public Meetings Act issues.,Definitions,All government records are subject to public acc
9、ess unless specifically exempt under OPRA or any other law. Government Record: All records made, maintained, kept on file, or received in the course of official business. Expands Right to Know Law definition (records required to be maintained on file). 24 specific exemptions to disclosure (see exemp
10、tions handout).,Definitions,Custodian of a Government Record:Municipality - the municipal clerk or otherdepartment head if made known to the public. Any other public agency - the officer officiallydesignated by formal action of that agencysdirector or governing body, as the case may be.N.J.S.A. 47:1
11、A-1.1.,OPRA Request Forms,N.J.S.A. 47:1A-5.f. contains OPRA request form requirements. Be careful about adding exemptions to OPRA request form. Custodians have run into trouble if OPRA provision is not described accurately. Example: personnel records are exempt, without reference to exceptions named
12、 under N.J.S.A. 47:1A-10. GRCs Model Request Form is available online for adoption.,OPRA Requests,OPRA requests should be on the agencys officialOPRA request form (Renna v. County of Union(App. Div. 2009). Written requests not on an official form cannot bedenied solely because they are not on the of
13、ficialrequest form. Written requests not on an official form mustmention OPRA.,OPRA Hours,Custodians must permit records to be inspected, examined, and copied by any person during regular business hours, unless: a municipality has a population of 5,000 or fewer according to the most recent federal d
14、ecennial census; a board of education has a total district enrollment of 500 or fewer; or a public authority has less than $10 million in assets. If above applies, custodians may set OPRA hours during not less than six regular business hours over not less than three business days per week or the ent
15、itys regularly-scheduled business hours, whichever is less. N.J.S.A. 47:1A-5.a.,Section II: OPRA in Practice,Making an OPRA Request,Requestors: Must name specific identifiable government records. Be as specific as possible identify type of record, dates,parties to correspondence, subject matter, etc
16、. Requests for information or that ask questions are NOTvalid OPRA requests. Method of submission custodians can prescribe themethod by which an OPRA request must be transmitted tothe agency as long as it would not impose an unreasonableobstacle to the transmission of a request for a government reco
17、rd (i.e. fax, e-mail, etc.) Paff v. City of East Orange (App. Div. 2009).,How Do I Know What to Request and from Where?,Requestors are likely not aware of all records maintained by an agency. Custodians should assist requestors in identifying specific types of records spirit of OPRA suggests coopera
18、tion from Custodian. Requestors must submit OPRA requests to the agency that maintains physical custody of the requested records. Example: Request for Trenton PD report submitted to Trenton PD. Request for Cherry Hill tax maps submitted to Cherry Hill.,Receiving an OPRA Request: Non-Custodian Employ
19、ees,If an officer or employee of a public agency receives an OPRA request, they must forward the request to the records custodian or direct the requestor to the records custodian pursuant to N.J.S.A. 47:1A-5.h.,Steps to Follow When Responding to an OPRA Request,When is my deadline to respond? Is thi
20、s a valid OPRA request? Do I have enough information to fulfill request? Will the request require a special service charge? Substantial disruption of agency operations? Obtain records responsive to request. Do the records or portions thereof fit into any of OPRAs exemptions? Redact as necessary, con
21、vert to requested medium, calculate appropriate fees. Provide records via requested method of delivery, or deny with legal basis in writing.,Step 1: When is my deadline to respond?,When Does the Clock Begin?,The seven (7) business day response time begins when the custodian receives the OPRA request
22、. There should be another employee designated to receive/fulfill requests in custodians absence. Day 1 is the day after the custodian receives the OPRA request. When receiving an OPRA request, custodians should calculate the statutory response time and must adhere to it. This is the most common viol
23、ation of OPRA by records custodians.,Statutory Response Time,A custodian shall grant or deny access as soon as possible, but no later than 7 business days after the request is received. N.J.S.A. 47:1A-5.i. A custodian unable to comply with a request must indicate specific reason(s) in writing. N.J.S
24、.A. 47:1A-5.g. A custodian must provide a response to each item requested,either: Granting access; Denying access; Seeking clarification; or Requesting an extension of time. Failure to do so in writing within the seven (7) business days constitutes a “deemed” denial.,Immediate Access,Immediate acces
25、s to budgets, bills, vouchers, contracts, and government employee salary information. N.J.S.A. 47:1A-5.e. Immediate means as immediately as possible on the spot unless in storage, in use, or requires medium conversion. (Renna v. County of Union, GRC Complaint No. 2008-110 (March 2009). If a custodia
26、n cannot provide immediate access to records for a legitimate reason, the custodian must reduce such reason to writing and request an extension of time to comply with the “immediate” statutory requirement.,Additional Time Required,Custodians may seek extensions of time beyond the seven (7) business
27、day deadline with legitimate reasons (i.e. records in storage, medium conversion required, request voluminous, etc.). Requests must be in writing, within the seven (7) business days, and provide an anticipated date upon which the records will be provided. Failure to grant or deny access by the exten
28、ded deadline date results in a “deemed” denial. N.J.S.A. 47:1A-5.i.,Step 2: Is this a valid OPRA request?,Broad and/or Unclear Requests,Example of an overly broad request: “Any and all records related to the construction of the new high school.” “Records” is too broad of a term.Example of a valid re
29、quest: “Any and all e-mails between Jane Doe and John Smith regarding the construction of the new high school from January 1, 2009 to February 28, 2009.” Names specific type of record, parties to correspondence, subject and date range.,Broad and/or Unclear Requests,If a request does not name specifi
30、cally identifiable records or is overly broad, a custodian may deny access pursuant to the following court decisions: MAG, Bent, NJ Builders, and Schuler (GRC decision). A custodian is obligated to search her files to find the identifiable government records listed in the Complainants OPRA request.
31、A custodian is not required to research her files to figure out which records, if any, might be responsive to a broad and unclear OPRA request. See Donato v. Township of Union, GRC Complaint No. 2005-182 (February 2007).,Broad and/or Unclear Requests,In Burnett v. County of Gloucester, (App. Div. 20
32、10) the requestor sought access to “any and all settlements, releases or similar documents entered into, approved or accepted from 1/1/2006 to present.“ The Appellate Division concluded that the request for settlement agreements and releases without specifying the matters to which the settlements pe
33、rtained did not render the request a general request for information obtained through research, rather than a request for a specific record. The court examined the holding in MAG and the GRCs decision in Donato v. Twp. of Union, GRC 2005-182, interim order (January 31, 2007) and determined that “her
34、e, it is the documents, themselves, that have been requested, and their retrieval requires a search, not research.”,Step 3: Do I have enough information to fulfill request?,Seeking Clarification,A custodian may seek clarification of an overly broad or unclear request.Request must be in writing, with
35、in seven (7) business days.Response time stops until requestor responds Moore v. Township of Old Bridge, GRC Complaint No. 2005-80 (August 2005).,Step 4: Will the request require a special service charge? Substantial disruption of agency operations?,Special Service Charge,Special service charges for
36、 “extraordinary” requests must be reasonable and based on actual direct cost. N.J.S.A. 47:1A-5.c. Actual direct cost means hourly rate of lowest level employee capable of fulfilling request (no fringe benefits). Only warranted when: Copies cannot be reproduced by ordinary copying equipment in ordina
37、ry business size Accommodating request involves an extraordinary expenditure of time and effort (also allowed for inspection). Case-by-case determination - No ordinance allowed! GRCs “14 Point Analysis” (see Handout) Courier Post v. Lenape Regional High School, 360 N.J. Super. 191 (Law Div. 2002) an
38、d Fisher v. Department of Law & Public Safety, Division of Law, GRC Complaint No. 2004-55 (August 2006).,Substantial Disruption,If a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record(s) only after attempting to reach
39、a reasonable solution with the requestor that accommodates the interests of the requestor and the agency. N.J.S.A. 47:1A-5.g.This is a subjective determination based on an agencys resources available to fulfill a request. See Caggiano v. Borough of Stanhope, GRC Complaint No. 2006-220; Vessio v. NJ
40、DCA, Division of Fire Safety, GRC Complaint No. 2007-188.,Step 5: Obtain records responsive to request,Obtain Records Responsive,Reasonable that Custodian does not have physical custody of all records maintained by agency.Custodian should document attempts to access records from other departments/pe
41、rsonnel.Custodian should keep requestor informed of attempts to gain access to records.Custodian cannot be held responsible if another employee obstructs access as long as Custodian can prove attempts made to gain access to the records.,Step 6: Do the records or portions thereof fit into any of OPRA
42、s exemptions?,OPRAs Exemptions,24 specific exemptions contained in OPRA (see handout).If record does not fit into any exemption, it is accessible under OPRA. Default answer is always YES!,Step 7: Redact as necessary, convert to requested medium, calculate appropriate fees.,Redactions,Redaction means
43、 editing a record to prevent public viewing of material that should not be disclosed. Words, sentences, paragraphs, or whole pages may be subject to redaction.Custodians should manually “black out“ the information on the copy with a dark colored marker, then provide a copy of the blacked-out record
44、to the requestor.,Redactions Contd,If full pages are to be redacted, the custodian should give the requestor a visible indication that a particular page of that record is being redacted, such as a blank sheet bearing the words “page redacted“ or a written list of the specific page numbers being with
45、held. If an electronic document is subject to redaction (i.e., word processing or Adobe Acrobat files), custodians should be sure to delete the material being redacted. Techniques such as “hiding“ text or changing its color so it is invisible should not be used as sophisticated users can detect the
46、changes. * Custodians must identify the legal basis for each redaction!,Medium Conversion,A custodian must permit access to government records in the medium requested. N.J.S.A. 47:1A-5.d.If custodian does not maintain record in medium requested, he/she must: Convert the record to the medium requeste
47、d, or Provide a copy in some other “meaningful” medium (meaningful to the requestor).Custodian may impose a special charge related to conversion for: Extensive use of technology and Labor for programming, clerical and supervisory assistance that may be required.,Medium Conversion Contd,If conversion
48、 is completed in-house, there is generally no charge, unless actual costs can be demonstrated or special service charge applies. If an outside vendor is required, seek estimate and provide requestor with estimate for approval/rejection. Charge for conversion must be actual cost. See Libertarian Part
49、y of Central New Jersey v. Murphy, 384 N.J. Super. 136 (App. Div. 2006) Custodian charged $55.00 for a computer diskette. See also Gannett Satellite Information Network, Inc. v. Borough of Raritan, Docket No. SOM-L-1789-09 (December 2009) Gannett requested records in particular format not maintained
50、 by agency. Court held that Gannett must pay for any required medium conversion.,Legislative Changes to Copying Costs,Governor Christie signed legislation on September 10th that changes OPRAs fee schedule: Flat fee of $0.05 per page for letter sized pages and smaller; Flat fee of $0.07 per page for
51、legal sized pages and larger; Any public agency whose actual costs to produce paper copies exceed the $0.05 and $0.07 rates may charge the actual cost of duplication; Electronic records must be provided FREE OF CHARGE (i.e. records sent via e-mail and fax); and Must charge the actual cost to provide records in another medium (i.e. computer disc, CD-ROM, DVD). Fees became effective Tuesday November 9th.,
