The ability to obtain public records in New Jersey is about to undergo a massive overhaul. A new bill, S2930 (the “Reform Bill”), was signed into law by New Jersey Governor Phil Murphy on June 5, 2024, and has the potential to make it more difficult for requestors to obtain access to certain government records.
The controversial move to pass the Reform Bill has been called out by numerous critics for imposing limits on government transparency and inviting corruption to the state. Governor Murphy’s response has remained that the Reform Bill considers these concerns and aims to simplify the current public record requests process by imposing much-needed limitations and modernizations. The Reform Bill will be effective 90 days following enactment.
New Jersey’s Reform Bill is not the only open record law introduced recently. A number of different states, including Utah, Louisiana, and Michigan, have introduced and, in some cases, passed different kinds of government transparency bills in their respective state governments. However, the level of transparency ranges, with some of these bills limiting public record access, while others introduce more public transparency.
New Jersey’s Open Public Records Act (N.J.S.A. 47:1A-1 et seq.) (“OPRA”), enacted in 2002, was initially put into law in an effort to improve public access to government records. The goal was to increase transparency and improve communication between the public and government, and, up to this point, OPRA has been frequently used by the media and legal fields. The process under OPRA requires the submission of a request for public records (an “OPRA Request”) to the applicable department (e.g., the New Jersey Department of Health). The OPRA Request is then reviewed by the applicable government entity, which determines whether there are any responsive records available for public review. Once a determination is made that there are records to be relayed, copies are then provided to the requestor. Electronic copies are provided free of charge, while physical copies are charged at a rate of $0.05 per letter-sized page and $0.07 per legal-sized page. The government may charge all postage fees.
The types of records most often made available in response to OPRA Requests include nonconfidential information, such as settlement agreements, budgets, change-of-ownership notification documents, consulting agreements, and numerous types of correspondence. However, government employees reviewing and responding to requests are severely understaffed and have a request backlog. OPRA was drafted and effectuated prior to the internet era that we live in nowadays. So, as originally written, OPRA did not account for the number of documents that are digitized and saved every day, which need to be identified and reviewed for each request, nor did OPRA account for the number of requests that can be submitted without issue.
The Reform Bill lengthens the timeline for government clerks to respond to OPRA Requests and requires the requestor to narrowly tailor its request. For instance, requests for emails or correspondence must be extremely specific by including a discrete and limited time period, the specific subject matter, and government employee names and/or titles. Otherwise, such requests can be immediately denied. All of the documents provided in response to OPRA Requests must also be redacted to remove any personal information of government officials. This update is in line with Daniel’s Law (N.J.S.A. § 56:8-166.1), a statute passed in 2020 prohibiting publishing addresses or phone numbers of certain “covered persons,” typically government officials and their families, in order to shield them from public harassment or threats. Under the Reform Bill, the responder is given more leeway in determining the fee for providing physical copies and may impose a reasonable service charge, along with additional fees based upon the actual direct cost of providing the copies. Additionally, OPRA Requests that do not include the requestor’s name, address, email, and phone number may be denied. While anonymous requests cannot be denied, anonymous requestors will not have the ability to challenge a denial, which may lead government agencies to deny anonymous requests.
Lastly, the Reform Bill incentivizes government entities to digitize more of their paper records and introduces new pathways for regulators to file complaints against requestors acting with an intent to harass or substantially interrupt government function. This would allow government clerks to use their own reasonable discretion when responding to harassing or frivolous requests. Unfortunately, this may have negative impacts on requests submitted for legal purposes—especially in the context of transaction due diligence and litigation document requests.
While OPRA is still robust in New Jersey, requests for “all documents and correspondence related to” a certain topic are likely to be rejected. Requestors will have to narrowly tailor their requests, which may lead to a smaller universe of responsive documents.
