Open Public Records Act 

The Open Public Records Act and the Destruction of Public Records Act

By Edward A. Kondracki, Esquire
Law Offices of Edward A. Kondracki, L.L.C.

On January 8, 2002, the Acting Governor signed into law the “Open Public Records Act” which revises both the types of documents that are open to the public and the procedure that a public entity must follow in providing such documents. The new law takes effect on July 8.

Before OPRA, there were two legal vehicles by which public records could be obtained.  Under the former Right to Know Law¹, a public record was defined as any record which a governmental entity was required by law to keep.  For those records that fell within this narrow definition, the statute provided an absolute right of access.  For all other records in the possession of a governmental entity, the right to review was controlled by the common law and involved a balancing test between the reason given for requesting disclosure and the reason given for maintaining confidentiality. Although OPRA provides that nothing in the new law shall be construed as limiting the common law right of access to a government record, N.J.S.A. 47:1A-8, the definition of “government record” in OPRA is so broad that in almost all instances, access to a requested record will be governed exclusively by OPRA.

Substantive Changes to the Law Regarding Access to Public Records

Since the Legislature has declared that all government records are subject to public access unless exempt from such access by 1.) OPRA, 2.) any other statute, 3.) a resolution of either or both houses of the legislature, 4.) a regulation promulgated under authority of a statute or an executive order of the governor, 5.) an executive order of the governor, 6.) Rules of Court, or 7.) any other federal law, federal regulation or federal order, it is important to review the definition of “government record” in some detail.

A “government record” is defined as any paper, book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of the official business of the entity by any officer, commission, agency or authority of the state or any political subdivision thereof, or that has been received in the course of the official business of the public entity by any such officer, commission, agency or authority of the state or any political subdivision thereof.

Specifically excluded from the definition of “government record” are the following: [2] 

·        Inter-agency or intra-agency advisory, consultative or deliberative material

·        Information received by a member of the Legislature from a constituent or information held by a member of the Legislature concerning a constituent, including information provided by that constituent, unless it is information that the constituent is required by law to provide

·        Any memoranda, correspondence, notes, report or other communications prepared by or for the specific use of a member of the Legislature in the course of the member’s official duties, unless the report is required by law to be submitted to the Legislature or its members

·        Any photographs of a deceased person taken by or for the medical examiner at the scene of death or during an autopsy, except that such documents may be released in a criminal action which relates to the death of that person, or for use as a New Jersey court may permit, or for use in the field of forensic pathology or in medical or scientific education or research or lastly, for use by a law enforcement agency

·        Criminal investigatory records

·        Victims’ records, except that a victim of a crime shall have access to the victim’s own records

·        Trade secrets and proprietary, commercial or financial information obtained from any source, including data processing software obtained by a public body under a licensing agreement which prohibits its disclosure

·        Any record within the attorney-client privilege, except that bills or invoices are public records but the public entity is permitted to redact any information contained therein that is protected by the attorney-client privilege

·        Administrative or technical information regarding computer hardware, software and networks, which if disclosed, would jeopardize computer security

·        Emergency or security information or procedures for any buildings or facilities which, if disclosed, would jeopardize security

·        Security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons or property

·        Information which, if disclosed, would give an advantage to competitors or bidders

·        Information compiled with respect to any sexual harassment complaint, any grievance or any collective bargaining negotiations, including documents and statements of strategy or negotiating position

·        Communications between a public agency and its insurance carrier or risk manager

·        Information which is to be kept confidential pursuant to court order

·        That portion of any document which discloses the social security number, credit card number, unlisted telephone number or driver license number of any person; except that this information may be disclosed for use by any governmental agency in carrying out its functions or by any private person or entity seeking to enforce payment of court ordered child support. In addition, disclosure of driver information by the Division of Motor Vehicles is permitted in accordance with N.J.S.A. 39:2-3.4. Further, the social security number contained in a record required by law to be made or maintained by a public agency shall be disclosed when access to that document or disclosure of that information is not otherwise prohibited by law

·        Personnel or pension records of any individual, including grievances, except that an individual’s name, title, position, salary, payroll record, length of service, date of separation and reason for separation and the amount and type of any pension received shall be a government record. Personnel or pension records of an individual shall be accessible when required to be disclosed by another law, when disclosure is essential to the performance of the official duties of a governmental officer or when authorized by the individual. Further, data contained in the information that disclose conformity with educational or medical qualifications required for government employment or for receipt of a public pension, but not including detailed medical or psychological information, shall be deemed a government record.

OPRA prohibits or restricts access to what would otherwise be classified as government records in three narrow circumstances. First, N.J.S.A. 47:1A-1.2 restricts access to biotechnology trade secrets. Second, N.J.S.A. 47:1A-2.2 prohibits access to certain information by persons convicted of an indictable offense. Under this exception, when it appears that a person who is convicted of an indictable offense seeks government records containing the personal information of the victim or victim’s family including address, telephone number, social security number, medical history or any other identifying information, the right of access shall be denied. Further, a governmental entity must not comply with an anonymous request for a government record containing such personal information.

 Third, N.J.S.A. 47:1A-3 denies access to records that pertain to an investigation in progress by a public agency, if access to the records is inimical to the public interest. This exception cannot be used, however, to deny access to a record of that agency that was open for public inspection before the investigation began. Notwithstanding this limitation, certain information concerning a criminal investigation must be made public within twenty-four hours of a request. If a crime has been reported but no arrest has been made, information as to the type of crime, time, location and type of weapon must be released. If an arrest has been made, information as to the victim must be released unless the next of kin have not been notified or because of concerns about the safety of the victim or victim’s family. If an arrest has been made, information as to the defendant, the nature of charges, the circumstances surrounding the arrest and bail information must be released, unless the release will jeopardize the safety of any person or jeopardize any investigation.

Procedures for Release of Public Records

Most of the responsibility for achieving compliance with OPRA falls upon the “custodian of records”, which the Act defines in the case of a municipality as the municipal clerk, and in all other cases, as the person so designated by formal action. For authorities, a draft resolution appointing the custodian of records is provided as a reference. The position requires significant effort and the title certainly should not be construed as nominal.

Since most of the “government records” under OPRA were previously accessible either through statute or common law, the main impact of the new legislation may be in the mandatory procedures and time limits for all governmental entities to follow in providing access to public records, rather than in the substance of what constitutes a public record. These procedures and time limits are found in N.J.S.A. 47:1A-5.

 The custodian of a government record must permit the record to be inspected, examined and copied by any person during regular business hours unless the record is exempt from public access, as defined above. Prior to allowing access to the government record, the custodian must redact any information that discloses the social security number, credit card number, unlisted telephone number or driver license number of any person, unless such information should remain for the reasons cited above.

           Copies of government records may be purchased by any person upon payment of the following fee: first page to tenth page, $0.75 per page; eleventh page to twentieth page, $0.50 per page; all pages over twenty, $0.25 per page. If a public agency can demonstrate that its actual cost for duplication of a government record exceeds the established rates, the public agency can charge the actual cost of duplication, which is defined as the cost of materials and supplies used to make a copy of the record, but not the cost of labor or other overhead expenses associated with making the record. If, however, the nature, format, manner of collation or volume of a government record embodied in the form of printed matter is such that the record cannot be reproduced by ordinary document copying equipment in ordinary business size or it involves an extraordinary expenditure of time and effort to accommodate the request, the public agency may charge, in addition to the actual cost of duplication, a “special service charge” that must be reasonable and must be based upon the actual direct cost of providing the copy or copies. In the case of a municipality, rates for the duplication of particular records when the actual cost of copying exceeds the foregoing rates must be established in advance by ordinance. A requestor has the opportunity to review and object to the charge prior to it being incurred.

            The custodian of records must provide a copy in the medium requested if the public agency maintains the record in that medium. If the public agency does not maintain the record in the medium requested, the custodian must either convert the record to the medium requested or provide a copy in some other meaningful medium. If the request is for a record: (1) in a medium not routinely used by the agency; (2) not routinely developed or maintained by an agency; or (3) requiring a substantial amount of manipulation or programming of information technology, then the public agency may charge, in addition to the duplicating costs, a “special charge” in an amount that is reasonable, based upon the cost for any extensive use of information technology or for the labor cost actually incurred by the agency for the assistance required, or both.

Immediate access ordinarily should be granted to request for budgets, bills, vouchers, contracts (including collective bargaining agreements and individual employment contracts) and public employee salary and overtime information.

The custodian must adopt a form to be used for requests for access to a government record. Specific information is required to be contained in the form. Municipalities can provide that each agency (governing body, planning board, zoning board, utilities department, police department, etc.) has its own form, or can use one form for the entire municipality. Authorities only require one form. Draft “Request for Public Records” forms are provided for reference.[3] Regardless, all requests for public records must be channeled through the custodian.

OPRA provides that a deposit against costs may be required if there is an anonymous request and the estimated cost of reproduction exceeds $5.00. OPRA also provides that a custodian must provide “a statement as to whether prepayment of fees or deposit is required.” N.J.S.A. 47:1A-5.f. By making a distinction between a “prepayment of fees” and a “deposit”, the Legislature seems to be approving the prepayment of fees in all cases, not merely limited to a deposit in the case of an anonymous request.

A request for access to a government record must be in writing. If the custodian is unable to comply with the request, the custodian must indicate the specific basis for noncompliance on the request form and promptly return it to the requestor. The custodian must sign and date the form and provide the requestor with a copy. If the custodian asserts that a portion of a particular record is exempt from public access, the custodian should delete that portion which is exempt and provide access to the remainder of the record. If the record is temporarily unavailable because it is in use or storage, the custodian must advise the requestor and make arrangements to make a copy of the record available. If a request for access to a government record would substantially disrupt the agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interest of the requestor and the agency.

Any officer or employee of a public agency who receives a request for access to a government record must forward that request to the custodian. Ordinarily, the custodian must either grant or deny access to the government record as soon as possible, but not later then seven business days after receiving the request, provided that the record is currently available and not in storage or archived. Failure to respond within seven days of receipt is deemed a denial of the request, unless the requestor has not provided a name, address, telephone number or other means of contacting the requestor. If such information is not provided by the requestor, the custodian need not respond until the requestor reappears in person. If the record is in storage or archived, the requestor must be notified within seven days after the custodian receives the request when the record can be made available. If the record is not made available by the stipulated date, access is deemed denied.

The custodian must prominently post in a public area a statement that sets forth in clear specific terms the right to appeal a denial of, or failure to provide, access to a government record by any person for inspection, examination or copying and the procedure by which an appeal may be filed. A proposed “Public Notice” is provided for reference.

N.J.S.A. 47:1A-6 provides the procedure for challenging denial of access to a government record. A requestor has the option of either filing an action in Superior Court or else, filing a complaint with the newly-created “Government Records Council” that is created under OPRA. A requestor who prevails in any proceeding shall be entitled to reasonable attorneys fees.

N.J.S.A. 47:1A-11 provides penalties for the violation of OPRA. A public official, officer, employee or custodian who knowingly and willfully violates OPRA and is found to have unreasonably denied access under the totality of the circumstances, is subject to a civil penalty of $1,000 for an initial violation, $2,500 for a second violation that occurs within ten years of an initial violation and $5,000 for a third violation that occurs within ten years of an initial violation. In addition, appropriate disciplinary proceedings may be initiated against the public official, officer, employee or custodian against whom a penalty has been imposed.

Retention and Destruction of Public Records

Although not a part of OPRA, the issue of how long public records must be maintained will determine whether the public agency is under an obligation to have the record available or whether it may be destroyed, in accordance with law. The statute involving the retention and destruction of public records is found at N.J.S.A. 47:3.

N.J.A.C. 15:3-3.1 provides that no municipal agency shall destroy or otherwise dispose of any public records without having first secured from the Division of Archives and Records Management in the Department of State authorization to do so in accordance with the provision of the Destruction of Public Records Law. This regulation is in accord with N.J.S.A. 47:3-17. Thus, authorization from the Division must be given prior to the destruction of any public record.

N.J.A.C. 15:3-3.5 specifies the procedure for requesting authorization for disposal of public records. The regulation provides that at least thirty days prior to the date proposed for the destruction of records, a municipal agency must submit to the Division a request for authorization on forms provided by the Division. If the records to be destroyed are based upon the “Records Retention and Disposition Schedule”, the Division can give approval; if the items to be destroyed are not based upon the Schedule, the State Records Committee must review and approve the request.

All authorities should obtain the latest copy of the New Jersey “Records Retention and Disposition Schedule, General Schedule, County and Municipal Agencies” and the “Utilities and Authorities Records Retention Schedule” from the Division. These schedules provide the mandatory minimum period of time for retention of the public records referred to therein. In the event that a public entity intends to dispose of public records no longer needed for public use, it must comply the minimum retention times contained in these schedules. Authorities should also obtain a “Request and Authorization for Records Disposal” form from the Division. This form must be used in submitting an application for approval to destroy any public record.

Separate schedules exist for other municipal records, such as tax collector, building inspection, public works, zoning and planning, and others and these retention schedules may be obtained from the Division as well. Ironically, neither the “Request and Authorization for Records Disposal” form nor the retention schedules are available on the Internet. Some municipalities have alleged that the reason that the forms are not available electronically is that a request for the forms triggers an audit by the Division. If there is such a concern, the forms and schedules can be obtained by counsel.

Note: This article is for general informational purposes only and is not intended to provide legal advice. The accompanying forms are for illustration only. Public entities should seek the advice of their own counsel when dealing with legal issues involving an interpretation of, or compliance with, the statutes referred to in this article.