Gaining access to New Jersey’s records


 

I need access to something from public records. How do I obtain records under New Jersey’s records law?  What records are available?

Under New Jersey’s Open Public Records Act (“OPRA”), New Jersey citizens may gain access to “any 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” that has been created or received by a government official of a public agency in the course of his/her official duties. N.J. Stat. § 47:1A-1.1.  Non-citizens have also been granted access.

If you are requesting a specific record you need to be able to point to the statute or mandate that requires the record to be made or maintained to prove that it is part of an official’s duties and therefore subject to OPRA. Southern New Jersey Newspapers, Inc. v. Township of Mount Laurel, 275 N.J. Super. 465, 478 (App.Div. 1994).

If what you need does not fall under OPRA, you can try to gain access under common law, which grants access to any written (or recorded) record generated by a public official who is “authorized by law to make it.” Nero v. Hyland, 76 N.J. 213, 222 (N.J. 1978). To determine what gets disclosed, the court balances the public interest in free information against the State’s interest in confidentiality.

Records made available

Records not made available

After a reporter from the Times of Trenton was not permitted to attend a meeting or see the minutes for Lafayette Yard Commercial Development Corporation, the NJ Supreme Court held that, although it was a private company, Lafayette Yard was a public agency for purposes for OPRA, because the City holds a beneficial interest in the company, controls membership on the board, and supports the company through its taxing power. This makes Lafayette an “instrumentality or agency… created by a political subdivision,” and subject to OPRA, and therefore the records are accessible. Times of Trenton Publ'g Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519 (N.J. 2005).

Newspaper sought access to Township’s records on applications for firearm permits and identification cards. The Court denied this because it was in violation of a Rule promulgated by the Township’s Superintendent, which was tacitly approved by the Legislature, and then explicitly approved by the trial court in this case. Southern New Jersey Newspapers, Inc. v. Township of Mount Laurel, 275 N.J. Super. 465 (App.Div. 1994).

The Appellate Court held that Bergen Regional Hospital was required to disclose its financial documents to The Reporter and the union under common law, as they had a material interest, and the public benefit of disclosure outweighed the dangers (which Bergen raised as including financial trouble if it were forced to disclose its documents.) Bergen County Imp. Authority v. North Jersey Media Group, Inc., 370 N.J. Super. 504 (App.Div. 2004).

Newspaper was denied access to criminal investigative reports, because there was no law or mandate requiring the records to be made [which was a requirement under old law], and the need for confidentiality trumped the public’s right to know. Daily Journal v. Police Dept. of City of Vineland, 351 N.J. Super. 110 (App.Div. 2002).


 

What exceptions are there?

OPRA has the following statutory exceptions:

  • inter- or intra-agency material that is advisory, consultative, or deliberative in nature. See Education Law Center v. New Jersey Dept of Educ., 198 N.J. 274 (N.J. 2009) (holding that a document consisting of raw factual data does not preclude it from being part of the deliberative process).
  • communications between a member of the legislature and constituents.
  • memoranda and other communications used by a member of the legislature in the course of her duties.
  • medical examiner records concerning the body of a deceased person, unless they are used for law enforcement or research purposes, or if there is good cause for disclosure. See Ausley v. County of Middlesex, 396 N.J. Super. 45 (App.Div. 2007) (holding that medical specimens do not count as OPRA records).
  • criminal investigatory records. See North Jersey Media Group, Inc. v. Township of Lyndhurst, 2015 N.J. Super. LEXIS 96 (App.Div. June 11, 2015)(holding that exemption does not apply to documents relating to the identity of the investigating and arresting personnel and agency, length of investigation, use of weapons and ammunition by police).
  • crime victim's records.
  • trade secrets, commercial or financial information. See Newark Morning Ledger Co. v. New Jersey Sports & Exposition Authority, 423 N.J. Super. 140 (App.Div. 2011) (holding that where the generalities of the information is well known, such as the range of fees a concert venue charges, the specifics charged to each artist will not be held to be confidential or trade secrets subject to exemption).
  • information subject to attorney-client privilege. See O'Boyle v. Borough of Longport, 218 N.J. 168 (N.J. 2014) (holding that privilege survives the end of the attorney-client relationship, but does not survive revealing the documents to a third party. However, documents shared with interested parties are still exempt under the common interest doctrine).
  • technical or administrative information that may jeopardize computer security.
  • building and infrastructure plans and emergency procedures whose disclosure might create a security risk.
  • information which, if disclosed, would give an advantage to competitors or bidders. See Gill v. New Jersey Dep't of Banking & Ins., 2013 N.J. Super. Unpub. LEXIS 345 (App.Div. Feb. 14, 2013) (holding that, although another statute required the release of documents regarding insurance rates, the OPRA exemption superseded this).
  • information about sexual harassment complaints or grievances -- generally, but not always.  See Asbury Park Press v. County of Monmouth, 201 N.J. 5 (2010) (holding that the settlement in a sexual harassment claim was NOT exempt, because there was no reasonable expectation of privacy).
  • information about collective negotiations.
  • information between a public body and its insurer.
  • information kept confidential under court order.
  • honorable discharge certificates (disclosure is permitted to the veteran's spouse). See Rosenblum v. Borough of Closter, 2006 N.J. Super. Unpub. LEXIS 1444 (App.Div. Dec. 5, 2006) (holding that both the certificate of discharge and Form DD-214 are exempt).
  • personal information including social security, driver’s license, credit card, and unlisted phone numbers. See Burnett v. County of Bergen, 198 N.J. 408 (2009) (holding that land records were accessible under OPRA, but SSN must be redacted to protect privacy interests).
  • college and university records covering: incomplete pharmaceutical research; test questions, answers, and scoring keys; identity of anonymous donors; rare books that have limited public access; admission applications; student records (academic and disciplinary).
  • records exempted under another statute.
  • personal firearm records, except for use by government agencies or those authorized by law.
  • files maintained by the public defender in a case that is considered to be confidential.
  • personnel and pension records.[1] See McGee v. Township of East Amwell, 416 N.J. Super. 602 (App.Div. 2010) (holding that personnel records exemptions are not restriction to documents in an employee’s personnel file).

Record Exempt (Not accessible)

Record Not Exempt (Accessible)

Following the Bridgegate scandal, the Court found that the personnel record exception applied to government employee records and nongovernment employee records that were in the possession of a government official. Therefore, the records did not have to be disclosed. North Jersey Media Group v. State, 2013 N.J. Super. Unpub. LEXIS 1008, *9 (App.Div. May 1, 2013),

Defendant Township was required to grant access to the police force’s Use of Force records after the Court ruled that they were not sufficiently related to the criminal investigatory records to be exempt. O'Shea v. Township of West Milford, 410 N.J. Super. 371 (App.Div. 2009).

Plaintiff sought records and information regarding a police investigation against him, including any statements, investigation theory, and opinions. The records custodian denied this, because plaintiff had already been given a copy of the police report, and the statements, theories, and opinions are exempt under OPRA. Similarly, records custodians are not expected to do research or fulfill requests for general information. Bent v. Township of Stafford Police Dept., Custodian of Records, 381 N.J. Super. 30 (App.Div. 2005).

Plaintiff newspaper requested documents including federal Grand Jury subpoenas and County Clerk’s notes from the County. The subpoenas were denied, as they are exempt under federal statute and disclosure could have harmed a criminal proceeding. The clerk’s handwritten notes were not exempt, but they did have to be reviewed to see what constituted deliberative material that needed to be redacted. Gannett N.J. Partners, LP v. County of Middlesex, 379 N.J. Super. 205 (App.Div. 2005)

Plaintiff sought health insurance information on City employees. He was denied under OPRA, because this falls under the exemption for personnel files. But the court came to a compromise on his common law claim, balancing his right to know with the employees’ interest in privacy by disclosing the information without revealing any employee names. Michelson v. Wyatt, 379 N.J. Super. 611 (App.Div. 2005).

Government entities were required to release information required by law. Such information includes: the identity of the investigating and arresting personnel and agency, length of investigation, use of weapons and ammunition by police, and a brief statement which explains any omissions from such information. Such justification for omissions must meet the requirements under Section 3(b) to fall under the Criminal Investigatory Records Exception. North Jersey Media Group, Inc. v. Township of Lyndhurst, 2015 N.J. Super. LEXIS 96 (App.Div. June 11, 2015).

Plaintiffs requested records including of local, county, and state law enforcement agencies pertaining to the fatal police shooting of a criminal suspect. Plaintiff was partially denied under OPRA, because some of the information requested was not required by law to be made, filed, or maintained. Additionally, some information requested was properly denied because it was exempt from OPRA by virtue of such information pertaining to any criminal investigation. The Court remanded on Plaintiffs’ common law claim, with orders to trial court to balance the right of the public to know with the government employees’, and witnesses’ interests in privacy. North Jersey Media Group, Inc. v. Township of Lyndhurst, 2015 N.J. Super. LEXIS 96 (App.Div. June 11, 2015).

 

 


 

How do I submit a records request?

Records requests must be written. N.J.S.A. 47:1A-5.g. The records custodian is required to provide a form which will ask for your name, address, and phone number, as well as the record requested. N.J.S.A. 47:1A-5.f. However, if you submit a written statement containing the required information, the records custodian is required to accept this in place of the form. Renna v. County of Union, 407 N.J. Super. 230, 232 (App.Div. 2009). The request can be hand delivered, mailed, or submitted electronically, as long as it is sent to the appropriate custodian. N.J.S.A. 47:1A-5.f.


 

How long will it take?

The records custodian is required to respond to your request in no more than 7 business days. The custodian can respond by providing you with the record, informing you that it is in storage and will take extra time to retrieve, or denying your request. Additionally, if the custodian fails to respond to your request within 7 business days, that should be considered a denial of your request, unless you failed to include a name, address, telephone number, or other preferred means of contact on the request form. N.J.S.A. 47:1A-5.i.

Immediate access is usually granted to “budgets, bills, vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information.” N.J.S.A. 47:1A-5.e.


 

What can I do if I’m ignored or denied?

“If the public body is relying on an exemption, ask the custodian to release the nonexempt portions of the record with the exempt portions removed or redacted.”[1] If the custodian does not cooperate or this does not work for your purposes, you have three options available.

  1. Ask the Government Records Council for an informal mediation, which can be done upon written request. See N.J. Stat. Ann. § 47:1A-7
  2. File a formal action with the Government Records Council. See N.J. Stat. Ann. § 47:1A-6.
  3. File a lawsuit with the New Jersey Superior Court, which requires a $200 filing fee and following court procedure. Id.[2]

If you are going to file a lawsuit, it must be done within 45 days of the request denial. Mason v. City of Hoboken, 196 N.J. 51, 68 (N.J. 2008).

Updated September 2015