On Monday, June 5, New Jersey Governor Phil Murphy signed Senate Bill 2930/Assembly Bill 4045 into law, modifying the process of requesting and obtaining public records, and significantly altering the rights of those who submit a request for government records and are denied. First enacted in 2002, the Open Public Records Act (“OPRA”) has provided individuals and companies alike access to an abundance of public records in New Jersey. OPRA provides the public with the right to request and view government records such as planning and zoning documents, government budgets and salary reports, and law enforcement body-worn camera footage.
Murphy cites the new law as the first “comprehensive update” to the twenty-two-year-old law and asserts that this new update will lead to more government records becoming accessible on agency websites without the need for a formal OPRA request. The law includes $10 million in funding to assist municipalities with technological updates for records, among other things.
Some of the major areas of the new bill include:
- Enhanced protections for personal information
- An amendment to the attorney fee-shifting provision; and
- A restriction on the “commercial use” of OPRA.
The update broadly obligates a public agency to safeguard from public access, a citizen’s personal information with which it has been entrusted, or information that might reasonably lead to disclosure of a person’s personal information when that disclosure would violate a citizen’s expectation of privacy or when that disclosure may result in harassment, unwanted solicitation, identity theft, or opportunities for other criminal acts.
With respect to the attorney fee-shifting provisions, the old OPRA required a public agency to pay the attorney’s fees of a record requestor who challenged a denial under OPRA and prevailed. Following these amendments, a prevailing challenger is not automatically entitled to have their attorneys’ fees paid. A victorious challenger may still recover attorneys’ fees, but in the discretion of a judge upon finding circumstances where the challenged agency unreasonably denied access, acted in bad faith, or knowingly and willfully violated OPRA.
The OPRA update now restricts the “commercial use” of the act. Defined as “the direct or indirect use of any part of a government record for sale, resale, solicitation, rent, or lease of a service, or any use by which the user expects a profit…”. This restriction comes in the form of providing state and local agencies with increased time to respond to commercial requests – fourteen days as opposed to seven days for non-commercial requests. On the other hand, the update also provides commercial requestors with a tool, namely the option of paying certain fees to expedite their requests. The commercial use criteria does not apply to the news media, journalistic, educational, scientific, scholarly, or governmental organizations.
Lastly and importantly, the OPRA update codifies court decisions regarding OPRA, namely the 2012 Appellate Division Burke v. Brandeis decision which requires a date range, subject matter, and the identification of an employee, account, or job title of the individual whose records are to be searched upon an OPRA request and the 2016 New Jersey Supreme Court case of Gilleran v. Twp. Of Bloomfield, which expanded security camera recording access under OPRA.
This amendment to the crucial need and desire for government transparency that inspired OPRA is presented as one that helps state and local government agencies adjust to modern times and the technological advances of our world. However, there is no doubt that this amendment is slanted in favor of the government agencies from which documents are sought. The amendment provides government entities many reasons not to provide records, and eliminates the mandatory fee-shifting provision should they be found to have violated OPRA. In practice, government records are often needed to help citizens abide by certain laws and protect them from unlawful conduct. This amendment will make it harder to obtain documents the public would otherwise be entitled to, if it means filing expensive lawsuits without any assurance that the costs can be recovered. Legal professionals across the state will be keeping a close eye on the application and enforcement of these notable amendments to an important law for all of New Jersey.