Governor Murphy Signs Bill Amending NJ’s Open Public Records Act

The Open Public Records Act (“OPRA”) was first enacted in 2002. It  requires New Jersey’s local, county and state government agencies to provide the public with access to state, county and local government records. On June 5, 2024, Governor Murphy signed a bill amending key sections of OPRA. Those amendments were cheered by some-but decried by many, such as the American Civil Liberties Union, the New Jersey Working Family Party and the New Jersey Citizen Action organization.

An earlier version of the amendments to OPRA would have, among other things, limited public access to government email, addresses, email addresses, digital calendars, call logs, and dog license information. It also would have banned the release of metadata — information about when electronic files were created — and would have allowed records custodians to deny requests judged to lead to possible “harassment.”

That earlier version of amendments to OPRA was withdrawn in March and replaced with the bill recently signed into law by the Governor.

The current amendments include language that would allow  a court to “issue a protective order limiting the number and scope of requests the requester may make,” if they “sought records “with the intent to substantially interrupt the performance of government function.”

According to opponents such as the Reporters Committee for Freedom of the Press and the New Jersey Society of Professional Journalists, the amended bill defies the intended spirit of OPRA. See, for example, comments made by the News Guild of New York:

The new changes have been met with criticism and considered by many to place significant barriers between journalists and members of the public looking to obtain public information, including:

• Allowing government officials to deny requests based on overly broad qualifiers;
• Imposing new, narrow parameters for journalists and other requestors to access even basic correspondence, while also excluding email and call logs from any request;
• Letting commercial requestors and data brokers skip the line by paying an extra fee to receive records faster than the press and members of the public;
• Assuming all fees and services charged for records are reasonable, creating an obstacle for journalists and members of the public who may attempt to challenge outrageous bills; and
• Giving government entities the right to sue record requestors deemed to be “substantially interrupt(ing)” government functions with OPRA requests.

The new amendments also exempt most metadata behind a document and limit production to the document’s author, editor, and time of change.

The new bill extends the deadlines for the public agency to respond. Fulfilling a request for a document that is in storage can take an additional 21 days. A custodian who is supposed to fulfill a request within seven days could take twice as long if redactions were made to the document.

Additionally, if an agency has a copy of a record that it did not create, it will not be required to provide it. Instead, the agency will direct the requestor to the proper agency, if known.

Lastly, under the new law, a person who is denied access to a document will have 45 days from the denial to commence an appeal

Will Attorneys and Their Clients Be Able to Collect Attorneys’ Fees?

The bill initially provided that winners of OPRA lawsuits “may” be entitled to legal fees if the public agency is found to have knowingly violated the law or unreasonably denied access. In its current form, OPRA will allow judges to award fees only if the public agency’s denial was unreasonable, if the agency “acted in bad faith, or knowingly and willfully violated” the law – a much higher standard.

Nevertheless, Governor Murphy signed the amended bill and OPRA is in effect as amended.

Experienced New Jersey Civil Rights and Litigation Attorneys

The experienced New Jersey civil litigation lawyers at Schiller, Pittenger & Galvin, P.C., appear before Municipal Courts, Superior Courts, and public agencies in Union County and throughout the State of New Jersey. If you are involved in a dispute with a state, county, or local agency over an OPRA request, or need guidance on how to prepare and serve such a request, contact us. We can help you resolve your dispute with the agency or counsel you on how best to avoid such a dispute.

Call us at our Scotch Plains office at Schiller, Pittenger & Galvin, P.C., at 908 –402-4770 or email us here for a consultation.