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The NJSBA's Labor and Employment Law Section's latest newsletter looks at several first amendment issues in the field, including the free speech rights of employees and lawyers, NDAs and more. It also offers a primer on OPRA from the chair of the Government Records Council. Check out the article below. The newsletter is a benefit of section membership. To join, contact Member Services 732-249-5000.

Director’s Corner
OPRA: The Basics
by Robin Berg Tabakin

The Open Public Records Act,¹ commonly known as OPRA, provides the process to access government records held by state, county, and municipal public agencies in New Jersey. The Government Records Council (GRC) was created in 2002 by OPRA as a quasi-judicial body to adjudicate denials of access to government records. The GRC’s staff also administers a mediation program, provides OPRA training, operates an OPRA hotline (1-866-850-0511), and provides guidance to members of the public and OPRA custodians. However, the GRC cannot provide legal advice, including how to word or respond to a request. As of Jan. 2018, the GRC has received 4,770 complaints since July 2002; of those, 4,302 have been closed, amounting to a 90.2 percent closure rate.

Using OPRA to Request a Government Record
When invoking OPRA, records may be requested by individuals or commercial entities. As of this writing, the GRC has held that out-of-state requestors do not have standing to make OPRA requests.² However, the issue will likely be resolved by a higher court due to several New Jersey Superior Court cases (two in Atlantic County, and one each in Burlington, Gloucester, and Ocean counties) that are currently on appeal.

Requestors should use an agency’s official OPRA request form or the GRC’s model request form.³ However, in Renna v. Cnty. of Union, the court determined that “no custodian shall withhold such records if the written request for such records, not presented on the official form, contains the requisite information prescribed in N.J.S.A. 47:1A-5(f),” and “the form should be used, but no request...should be rejected if such form is not used.”⁴ Thus, an OPRA request submitted in a different manner than on the designated OPRA form must invoke the statute, or it will not be considered an OPRA request. The GRC does not have jurisdiction over common law or discovery requests and does not have authority over record content or retention.⁵

OPRA requests may be hand delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian. Oral requests are not OPRA requests. If the request is delivered to an employee other than the appropriate custodian, the employee may return it to the requestor and direct him or her to the proper custodian, or accept the request and forward it to the proper custodian.⁶ Agencies may limit these options based on their technological capabilities but cannot impose unreasonable obstacles on the requestor.⁷

In order to be fulfilled, all OPRA requests must be for existing government records. Requests must be for specific records and not for information. In MAG Entm’t, LLC v. Div. of Alcoholic Beverage Control, the court determined, “[u]nder OPRA, agencies are required to disclose only ‘identifiable’ government records not otherwise exempt...In short, OPRA does not countenance open-ended searches of an agency’s files.”⁸

A custodian is required to search files to find a requested record, but he or she is not required to research files to determine which files may be responsive to a broad and unclear request.⁹ Custodians are also not required to create a record. However, in Paff v. Galloway Twp., the plaintiff sought a log showing the sender, recipient, date, and subject matter of emails of specific employees over a defined time period.¹⁰ The Supreme Court determined that “electronically stored information extracted from an email is not the creation of a new record or new information; it is a government record.”¹¹ This applies to records in electronic databases.

A requestor may specify a preferred method of delivery, such as email or regular mail, as well as a particular medium, including paper copies, discs, etc. OPRA permits agencies to charge a copying fee of $0.05 for each letter-size page and $0.07 for each legal-size page. An agency may also charge for postage, where applicable. An agency cannot charge for records sent via email or fax unless it can prove there is an actual cost associated with delivery. For media such as CDs or DVDs, agencies can only charge the actual cost of materials.¹²

OPRA also recognizes other statutory fees. For instance, N.J.S.A. 39:4-131 allows an agency to charge an additional fee up to $5 to cover administrative costs of auto accident reports when they are requested “other than in person.” Agencies may also require that the requestor pay a special service charge for extraordinary requests, which must reflect actual direct cost.¹³ The agency must notify the requestor of the estimated charge, and the requestor must agree to pay the charge, prior to it being incurred.

Response to an OPRA Request
A custodian must respond to an OPRA request “as soon as possible, but not later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived.”¹⁴ The first business day begins the day after the request is received. Failure to respond to an OPRA request within this time period is a “deemed” denial of the request.¹⁵ A custodian must respond in writing either granting the request, denying the request, seeking clarification, or notifying the requestor of the need for an extension to comply. Each item in the request requires an individual response.¹⁶ In the case of a denial, in part or whole, a custodian must state in writing the lawful basis for it. If a custodian is not able to fulfill the request within seven business days, he or she may request an extension to a date certain on which he or she will respond. Typical reasons to request an extension include the volume of a request, the location of the records in storage, or the need to convert records to another medium. Failure to respond within the extended time frame results in a deemed denial. However, a custodian’s request for an extension of time is not dependent on the requestor’s approval. A custodian also may seek clarification if a request is overly broad or unclear, and the first business day begins the day after the clarification is received.¹⁷

Some records are considered “immediate access,” to which a custodian must respond at once by granting or denying the request, seeking clarification, or requesting an extension of time to comply.¹⁸ Examples of immediate access records include “budgets, bills, vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information.”

Government records as defined by OPRA include all records that are made, maintained, kept on file, or received in the course of official business in any public agency in the state of New Jersey. This includes:
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[A]ny paper, written or printed 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...The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.¹⁹
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A public agency is defined by N.J.S.A. 47:1A-1.1 as:
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● Any of the principal departments in the Executive branch of State Government, and any division board, bureau, office, commission or other instrumentality within or created by such department, as well as all state colleges and universities;
● The Legislature of the State and any office, board, bureau, or commission within or created by the Legislative Branch.
● Any independent State authority, commission, instrumentality or agency;
● Any political subdivision of the State, or any entity created by a political subdivision;
such as municipalities, county government, school districts, or the League of Municipalities;
● The Port Authority of New York/New Jersey. L. 2015, c. 64.
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While the definition of a government record encompasses most types of records a public agency possesses, OPRA contains exemptions, including the responsibility to safeguard a citizen’s personal information when disclosure would violate the citizen’s reasonable expectation of privacy;²⁰ any record within the attorney-client privilege;²¹ investigations in progress by any public agency;²² and certain personnel records.²³ OPRA also includes a ‘catch-all’ exemption recognizing exemptions in other federal or state statutes, regulations, executive orders, court rules, etc.²⁴

Filing a Complaint with the GRC
A requestor who believes that he or she has been wrongfully denied access to a requested government record by a custodian of records may file an action in New Jersey Superior Court or file a complaint with the GRC. Per statute, “[t]he public agency shall have the burden of proving that the denial of access is authorized by law.”²⁵ The GRC’s complaint process includes a free, confidential mediation session if both parties agree. The parties may also choose to have the GRC adjudicate the complaint. GRC decisions are appealable to the Appellate Division of the New Jersey Superior Court.

Denial of access complaints may be filed online.²⁶ There is no fee to file a complaint. A requestor does not have to be represented by an attorney. However, OPRA provides a fee-shifting provision for legal representation if the complainant is a “prevailing party,” that is, the desired result is achieved because the complaint brought about a change (voluntary or otherwise) in the custodian’s conduct,²⁷ the complainant can demonstrate “a factual causal nexus between plaintiff’s litigation and the relief ultimately achieved,” and “that the relief ultimately secured by plaintiffs had a basis in law.”²⁸ It should be noted that the GRC has denied prevailing party’s fees to an attorney who represented himself.²⁹

The GRC can assess a monetary penalty against a public official, officer, employee, or custodian who knowingly and willfully violates OPRA and unreasonably denies access under the totality of the circumstances. The civil penalty is specified by N.J.S.A. 47:1A-11(a):
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● $1,000 for the initial violation
● $2,500 for the second violation within 10 years of the initial violation
● $5,000 for the third violation within 10 years of the initial violation
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The GRC has held that the penalty must be paid personally by the individual who has been assessed. The public agency cannot pay the penalty. The New Jersey Superior Court has jurisdiction of proceedings for the collection and enforcement of the penalty.³⁰

Finally, the GRC and the courts have ruled on a number of issues:
● Verry v. Franklin Fire Dist. No. 1 (Somerset):³¹ Text messages that are “made, maintained or kept on file...or…received in the course of official business” are government records subject to disclosure. Exemptions may apply.
● Elcavage v. West Milford Twp. (Passaic):³² A valid OPRA request for emails should include:
○ Content and/or subject
○ Specific date or date range
○ Sender and/or recipient
● Pusterhofer v. New Jersey Dep’t of Educ:³³ There is no unlawful denial where responsive records do not exist.
● Blau v. Union Cnty. Clerk:³⁴ The request for copies of government records on a continuing basis is not valid under OPRA.
● Darata v. Monmouth Cnty. Freeholders:³⁵ Pending litigation is not a lawful basis for denial of access under OPRA.
● Parave-Fogg v. Lower Alloways Creek Twp:³⁶ Draft, unapproved meeting minutes are advisory, consultative, or deliberative (ACD) material and are exempt from disclosure. The nondisclosure of draft meeting minutes was also upheld very recently in Libertarians for Transparent Gov’t v. Gov’t Records Council & Frank Caruso.³⁷
● Miller v. Westwood Reg’l Sch. Dist. (Bergen):³⁸ An audio recording of a public meeting, which is used to draft meeting minutes, is not ACD material and is subject to disclosure.

The preceding information touches upon only some of the most common issues. However, OPRA and its relevant case law continues to evolve. For more specific information, please visit www.nj.gov/grc to find links to prior GRC decisions and advisory opinions. Nothing herein should be construed as legal advice or the opinion of the GRC or the author. This article is based on information that is current at the time of writing and is subject to change.

The Government Records Council can be reached at [email protected] or www.nj.gov/grc. The OPRA Hotline is available at 1-866-850-0511.

Robin Berg Tabakin serves as chair of the Government Records Council.

Endnotes
1. N.J.S.A. 47:1A-1 et seq.
2. Scheeler, Jr. v. Burlington Twp. (Burlington), GRC Complaint No. 2015-93 (Nov. 2016).
3. The form is available for download at http://www.nj.gov/grc/public/request/.
4. 407 N.J. Super. 230, 232, 245 (App. Div. 2009).
5. Kwanzaa v. Dep’t of Corr., GRC Complaint No. 2004-167 (March 2005); Toscano v. New Jersey Dep’t of Labor, Div. of Vocational Rehab. Servs., GRC Complaint No. 2007-296 (March 2008).
6. N.J.S.A. 47:1A-5(h).
7. Paff v. City of East Orange, 407 N.J. Super. 221, 229 (App. Div. 2009).
8. 375 N.J. Super. 534 (App. Div. 2005); see also Bent v. Stafford Police Dep’t, 381 N.J. Super. 30, 37 (App. Div. 2005).
9. Donato v. Twp. of Union, GRC Complaint No. 2005-182 (Feb. 2007).
0. 229 N.J. 340 (2017).
1. Id. at 353.
2. N.J.S.A. 47:1A-5(b).
3. N.J.S.A. 47:1A-5(c).
4. N.J.S.A. 47:1A-5(i).
5. Kelley v. Twp. of Rockaway, GRC Complaint No. 2007-11 (Interim Order dated Oct. 31, 2007).
6. Paff v. Willingboro Bd. of Educ. (Burlington), GRC Complaint No. 2007-272 (May 2008).
7. Moore v. Twp. of Old Bridge, GRC Complaint No. 2005-80 (Aug. 2005).
8. N.J.S.A. 47:1A-5(e).
9. N.J.S.A. 47:1A-1.1.
20. N.J.S.A. 47:1A-1.
21. N.J.S.A. 47:1A-1.1.
22. N.J.S.A. 47:1A-3(a).
23. N.J.S.A. 47:1A-10.
24. N.J.S.A. 47:1A-9. A list of exemptions can be found at http://www.state.nj.us/grc/meetings/present/OPRA%20Exemptions%20(2015).pdf.
25. N.J.S.A. 47:1A-6.
26. Available at http://www.nj.gov/grc/register/access/.
27. Teeters v. Div. of Youth and Family Servs., 387 N.J. Super. 423 (App. Div. 2006).
28. Mason v. City of Hoboken and City Clerk of the City of Hoboken, 196 N.J. 51 (2008).
29. Boggia v. Borough of Oakland, GRC Complaint No. 2005-36 (Interim Order dated Oct. 28, 2005).
30. Id.
31. GRC Complaint No. 2014-387 (July 2015).
32. GRC Complaint No. 2009-07 (April 2010).
33. GRC Complaint No. 2005-49 (July 2005).
34. GRC Complaint No. 2003-75 (Jan. 2005).
35. GRC Complaint No. 2009-312 (Interim Order dated Feb. 24, 2011).
36. GRC Complaint No. 2006-51 (Aug. 2006).
37. 2018 N.J. Super. LEXIS 14 (App. Div. 2018).
38. GRC Complaint No. 2009-49 (Interim Order dated Feb. 23, 2010).