1. What is the Open Public Records Act?
  2. When is OPRA Used?
  3. Are there other ways a requestor can access records besides OPRA?
  4. Who may file an OPRA request?
  5. What is an OPRA Request?
  6. What does an OPRA request look like?
  7. What is a "government record?"
  8. What records are exempt from public access?
  9. Who is the "custodian of a government record?"
  10. What is a "public agency" under OPRA?
  11. How must a requestor submit an OPRA request?
  12. Can I require payment for records before providing access?
  13. Do I have to provide records in a specific medium?
  14. Do I have to send records to a requestor by the method the requestor specifies?
  15. What happens if an employee other than me receives an OPRA request?
  16. When is a response to an OPRA request due?
  17. Do I have to provide access to any records immediately?
  18. What happens if I cannot fulfill a request within the required time frame to respond?
  19. How must I respond to an OPRA request?
  20. How much can I charge to provide records in response to an OPRA request?
  21. When can I charge a special service charge?
  22. What is a broad and/or unclear request?
  23. Do I have to provide records to commercial entities under OPRA?
  24. How many OPRA requests can a requestor make to one agency?
  25. Can a requestor bring his/her own photocopier into an agency's office to make copies?
  26. Can I provide on-site inspection of a record but deny access to actual copies?
  27. Can a requestor ask me for the same records under OPRA more than once?
  28. Can I create specific OPRA hours?
  29. Can I deny access to any government records?
  30. What happens if only portions of a record are exempt from public access?
  31. I am concerned about releasing personal information contained on a government record. Can I redact information such as a citizen's home address?
  32. An employee/member of the agency submitted an OPRA request. Is he/she exempt from paying the OPRA fees?
  33. The requestor has not yet picked up the requested records. How long do I have to keep the request open?
  34. What happens if no records responsive to a request exist?
  35. What is a substantial disruption of agency operations?
  36. What should be included on my agency's OPRA request form?
  37. What happens if I need more information in order to respond to an OPRA request?
  38. What happens if I do not maintain the requested records in my office?
  39. I have a requestor who is harassing me with numerous OPRA requests. What can I do?
  40. Government Records Council
  1. What is the Open Public Records Act?
     

    OPRA is a New Jersey statute that governs the public's access to government records in New Jersey.  The law is compiled in the statutes as N.J.S.A. 47:1A-1 et seq.  For a readable version of the statute, click here

    Specifically, OPRA is intended to:

    • Expand the public's right of access to government records;
    • Create an administrative appeals process if access is denied; and
    • Define what records are and are not "government records."
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  2. When is OPRA Used?
     

    OPRA is used when the requestor wants to gain access to government records and wants to invoke the OPRA statute, which provides a statutory right of access to government records and holds a records custodian to a response deadline.

    What does this mean?  The requestor must choose to submit an OPRA request.  Custodians do not decide when a requestor must use OPRA and cannot force requestors to submit an OPRA request. 

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  3. Are there other ways a requestor can access records besides OPRA?
     

    Yes.  OPRA does not affect a requestor's common law right of access, or right of access via discovery. 

    If a requestor seeks government records under the common law, please consider the following:

    A public record under the common law is one required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law, or directed by law to serve as a memorial and evidence of something written, said, or done, or a written memorial made by a public officer authorized to perform that function, or a writing filed in a public office. The elements essential to constitute a public record are that it be a written memorial, that it be made by a public officer, and that the officer be authorized by law to make it.

    If the information requested is a "public record" under common law and the requestor has a legally recognized interest in the subject matter contained in the material, then the material must be disclosed if the individual's right of access outweighs the State's interest in preventing disclosure.

    Note that any challenge to a denial of a request for records under the common law CANNOT be made to the Government Records Council, as the Government Records Council only has statutory authority to adjudicate challenges to denials of OPRA requests.

    A challenge to the denial of access under the common law can be made by filing an action in Superior Court.   Additionally, the GRC cannot provide any guidance on how to respond to a request under the common law.

    Discovery requests may also be served upon a public agency for access to government records pursuant to N.J. Court Rules, 1969 R. 3:13-3  (2005) and N.J. Court Rules, 1969 R. 7:7-7  (2005).  Please note that requests for discovery do not affect a requestor's right to request the same records under OPRA. 

    Note that any challenge to a denial of a request for records pursuant to a discovery request CANNOT be made to the Government Records Council, as the Government Records Council only has jurisdiction to adjudicate challenges to denials of OPRA requests

     A challenge to the denial of access pursuant to a discovery request can be made by filing an action in Superior Court. 

    Additionally, the GRC CANNOT provide any guidance on how to respond to a request through discovery. 

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  4. Who may file an OPRA request?
     

    Anyone!  Although OPRA specifically references "citizens of this State," (N.J.S.A. 47:1A-1) the Attorney General's Office advises that OPRA does not prohibit access to residents of other states.  Also, requestors may file OPRA requests anonymously without providing any personal contact information, even though space for that information appears on the form; thus anonymous requests are permitted.  However, OPRA specifically prohibits anonymous requests for victims' records.  N.J.S.A. 47:1A-2.2.  If a permissible anonymous request involves making copies and the estimated cost exceeds $5.00, the custodian may request a deposit.

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  5. What is an OPRA Request?
     

    An official OPRA request is a request for government records submitted to a public agency either: on an official OPRA request form; or an otherwise written request that clearly references OPRA.  If a written request does not mention OPRA in any way, it is not an OPRA request. Verbal requests are never OPRA requests

    Custodians cannot force requestors to use the public agency's official form if the requestor has submitted an otherwise valid written OPRA request.

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  6. What does an OPRA request look like?
     

    Click here to view an OPRA request on an official OPRA request form.  *This example uses the GRC's Model Request Form which is available for download here

    Click here to see a non-form OPRA request. *This example demonstrates a valid non-form OPRA request because the request clearly references OPRA. 

    Click here to see an invalid non-form OPRA request. *This example demonstrates an invalid non-form OPRA request because the request does not reference OPRA.  This is not an OPRA request.  Remember, valid OPRA requests must reference OPRA in the request. 

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  7. What is a "government record?"
     

    OPRA specifically defines a government record as:

    "... 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 or in a similar device, or any copy thereof, that has been made, maintained or kept on file ... or that has been received in the course of his or its official business ..." (Emphasis added.) N.J.S.A. 47:1A-1.1.

    Generally stated, a "government record" means any record that has been made, maintained, or kept on file in the course of official business, or that has been received in the course of official business.

    OPRA covers more than just paper records.  Under OPRA, a "government record" includes printed records, tape recordings, microfilm, electronically stored records (including e-mails and data sets stored in a database), books, maps, photographs, etc.

    All government records are subject to public access unless they are specifically exempt under OPRA or any other law.  There are 24 specific exemptions contained in OPRA. 

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  8. What records are exempt from public access?
     

    There are 24 specific exemptions contained in OPRA.  There are also exemptions contained in various Executive Orders.  Click here for a listing of all 24 exemptions in OPRA as well as exemptions contained in Executive Orders. 

    These exemptions do not represent an exhaustive list of records that are not available for public access.  There may be exemptions contained in other State statutes, regulations, case law, etc. 

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  9. Who is the "custodian of a government record?"
     

    OPRA defines "custodian of a government record" as the official designated by formal action of a public agency's director or governing body that has custody or control of the government records of the public agency. Some large state departments have determined that they can be more responsive to requests for access to government records by designating more than one custodian.  For example, the New Jersey Department of Law & Public Safety is comprised of ten divisions and four agencies; each of the divisions and agencies in Law & Public Safety designated a custodian to deal with records requests made to that division or agency.

    OPRA provides that the custodian of government records in a municipality is the Municipal Clerk.  However, OPRA does not preclude a municipality from developing reasonable and practical measures for responding to OPRA requests, which may include the designation of deputy custodians for particular types of records (most common occurrence is the Police Department).

    The GRC does not maintain a letter or resolution template to appoint an official custodian and OPRA does not mandate any specific method other than "formal action" of the agency's director or governing body. 

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  10. What is a "public agency" under OPRA?

     

    Only "public agencies" are subject to the provisions of OPRA.  OPRA defines a "public agency" as:

    • The executive branch of state government and all independent state agencies and authorities.  This includes all state colleges and universities; 
    • The Legislature of the State and any office, board, bureau or commission within or created by the Legislative Branch;  
    • All counties, municipalities, school districts, fire districts, planning and zoning boards and other county and local boards or agencies, and all independent county or local agencies and authorities established by municipal or county governments. N.J.S.A. 47:1A-1.1.

    The Judicial branch of state government (including the Supreme Court of New Jersey, the Superior Court of New Jersey, the municipal courts, the Administrative Office of the Courts, and the agencies, offices, and boards under their authority) are not considered public agencies under OPRA.  The Courts have adopted their own records disclosure policies and procedures.  See here.

    Private businesses are not public agencies under OPRA.  

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  11. How must a requestor submit an OPRA request?
     

    A request for access to a government record must be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian. A records request under OPRA cannot be made verbally. 

    Some public agencies have created systems that will permit a citizen to fill out an online request form and file it with the custodian over the Internet.  The means of submitting a request form (mail, in-person, Internet) will not affect which records will or will not be available for access. 

    Agencies may limit a requestor's submission options based on the agency's technological capabilities.  However, the agency cannot impose an unreasonable obstacle for requestor. 

    Example: City of East Orange does not accept faxed OPRA requests, but accepts all other methods.  This limitation does not present an unreasonable obstacle on the requestor because delivery of the request is possible by other means.

    Example: XYZ agency only accepts hand delivered requests. This presents an unreasonable obstacle on the requestor because there is no other means of delivering the request to the agency.

    Remember, all limitations on access shall be construed in favor of the public. 

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  12. Can I require payment for records before providing access?
     

    Yes.  In Paff v. City of Plainfield, GRC Complaint No. 2006-54 (July 2006), the Council held that, "[a]s the Custodian is awaiting payment for the duplication cost of the requested records, she is not required to release said records until payment is received..."  You may access this decision online here

    Additionally, the GRC's Model Request Form states that custodians may charge a 50% or other deposit when a request for copies exceeds $25. Further, anonymous requests in excess of $5.00 require a deposit of 100% of estimated fees.  You may access the GRC's Model Request Form here.  

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  13. Do I have to provide records in a specific medium?
     

    Yes.  OPRA provides that a custodian must permit access to a government record and provide a copy of the record(s) in the medium requested, if the public agency maintains the record in that medium.  If the custodian does not maintain the record in the medium requested, he/she must: 

    • Convert the record to the medium requested; or
    • Provide the record in some other meaningful medium (meaningful to the requestor).

    If the agency maintains the record in the medium requested, the custodian can only charge the actual cost of copying (such as the cost of the floppy disk or CD-ROM).  However, a custodian may impose a special service charge related to conversion for: 

    • Extensive use of technology; and
    • Labor for programming, clerical and supervisory assistance that may be required. 

    The special service charge must be based on the cost of the technology and labor actually incurred.  This may include charges incurred by an outside vendor. 

    Before undertaking any conversion to another medium or taking other major actions that would result in the imposition of a special charge, the custodian must first inform the requestor that a special charge will be incurred and give the requestor the opportunity to accept or reject the extra fee.  If the requestor objects to the special charge and refuses to pay it, the custodian may deny the request for access to the record.  However, if the requestor is willing to pay for it, the agency has the responsibility to provide access to the government record in the requested format. 

    Can I charge a fee to convert records to a specific medium?

    Maybe.  Actual costs apply.

    Example 1: A requestor wants a record sent via e-mail.  The Custodian must scan a paper document to convert it to electronic format.  The request takes the Custodian 5 minutes to complete.  No charges apply. 

    Example 2: A requestor wants an audio recording of a meeting on CD-ROM.  The Custodian copies the recording in house onto a CD-ROM the agency purchased for $0.50.  The request takes the Custodian 20 minutes to complete.  The charge is $0.50. 

    Example 3: A requestor wants large tax maps on CD-ROM.  The Custodian does not have the capability to scan large maps and must use a third party vendor.  The vendor charges the agency $5.00 for the service.  The $5.00 fee is passed on to requestor. 

    Special Note: Vendor fees are special service charges and must be approved by the requestor prior to being incurred. 

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  14. Do I have to send records to a requestor by the method the requestor specifies?
     

    Yes.  A custodian must grant access to a government record by the method of delivery requested by the requestor (such as regular mail, fax, or e-mail).  OPRA permits the production of electronic records free of charge, except that a public agency may charge the actual cost of any needed supplies such as computer discs. 

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  15. What happens if an employee other than me receives an OPRA request?
     

    OPRA permits a public agency to adopt one of two processes for when non-custodian officers or employees receive records requests.  Any officer or employee of a public agency who receives a request for access to a government record may either: 

    • Forward the request to the agency's records custodian; or
    • Direct the requestor to the agency's records custodian.  

    In other words, a public agency may decide to permit any employee to accept a records request which must then be promptly forwarded to the appropriate custodian, or the employee may refuse to accept the request and direct the requestor to the appropriate custodian. 

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  16. When is a response to an OPRA request due?
     

    Custodians should respond in writing to an OPRA request as soon as possible but not later than seven (7) business days after the request is received, provided that the record is currently available and not in storage or archived. Day One (1) is the day following the custodian's receipt of the request.  The Custodian's response must grant access to the records sought, deny access to the records sought, ask for clarification of the request or ask for an extension to time to fulfill the request.

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  17. Do I have to provide access to any records immediately?
     

    Yes.  OPRA requires that custodians must ordinarily grant immediate access to budgets, bills, vouchers, contracts (including collective negotiations agreements and individual employment contracts), and public employee salary and overtime information. 

    Immediate access means at once, without delay.  Exceptions may include instances in which the requested records are in use, in storage, or require medium conversion.  In such instances, the custodian must provide access as immediately as possible.  Agencies should act reasonably, however, using their best efforts to comply with this requirement.

    If a custodian cannot provide immediate access to records for a legitimate reason, the custodian must immediately provide such reason in writing to the requestor and notify the requestor of the anticipated deadline date upon which the records will be provided. 

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  18. What happens if I cannot fulfill a request within the required time frame to respond?
     

    Custodians may seek extensions of time beyond the seven (7) business day deadline for legitimate reasons (such as the record is in use or in storage).  Custodians must notify the  requestor in writing, within the statutorily mandated seven (7) business days and provide an anticipated deadline date upon which the records will be provided.  The length of the extension must be reasonable under the circumstances.  The Custodian's failure to grant or deny access to the requested records by the extended deadline date results in a deemed denial of the request. 

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  19. How must I respond to an OPRA request?
     

    In writing...always!  It is the GRC's position that a custodian's written response, even if said response is not on the agency's official OPRA request form, is a valid response pursuant to OPRA.  The Custodian's written response must either grant access, deny access, seek clarification or specify a particularextension of time required to fulfill the request.   

    The GRC has response templates for custodians' convenience here

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  20. How much can I charge to provide records in response to an OPRA request?
     

    Custodians may charge the fee prescribed by law or regulation, if another law sets a specific fee for specific record.  What does this mean?  This sentence means that custodians are to charge OPRA requestors any copy fees that are established by other New Jersey laws or regulations, if said fees exist. 

    For example, N.J.S.A. 22A:4-1a sets forth specific fees for certain records filed with the New Jersey Department of Treasury (and requested from the Department of Treasury).  Specifically, said statute provides that "[i]f a roll of microfilm images is requested, the State Treasurer shall collect a fee of $1.00 for each image on the microfilm roll."  Thus, if a requestor seeks access to a microfilm roll from the Department of Treasury, the Department's custodian must charge the fees established in N.J.S.A. 22A:4-1a.  The same applies for any other records that have specific fees established in other New Jersey laws or regulations.

    Municipal ordinances do not qualify under OPRA as being another law or regulation. 

    If there is no other fee established by law or regulation, the standard copying fee is $0.05 per page for letter sized printed pages and $0.07 per page for legal sized printed pages.  This is the most common copying fee under OPRA.  For example, a custodian providing access to 3 pages of printed meeting minutes on letter size pages would charge a requestor $0.15 ($0.05 per page for 3 pages = $0.15).

    If a public agency can prove that its actual costs to produce printed pages are more than $0.05/$0.07, the agency may charge its actual costs.  Click here for details on how to calculate actual costs.  

    Electronic records sent via e-mail or fax are free of charge.

    Custodians must charge the actual cost for all other materials such as CD, DVD, cassette, etc.  The actual cost is the cost of the material only and cannot include any labor fees.  For example, if the GRC purchased a package of 100 CD-ROMs for $100 and provided records to a requestor on 1 CD-ROM, the actual cost of said CD-ROM is $1.00 ($100 ÷ 100 = $1.00). 

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  21. When can I charge a special service charge?
     

    A special service charge is essentially a labor fee that may be charged when a request is voluminous, requiring extensive time and effort, or when the request required extensive use of technology.  Special services charges must be reasonable and based on actual direct cost of fulfilling the request.  Actual direct cost means the hourly rate of the lowest level employee capable of fulfilling the request (no fringe benefits).

    The imposition of a special service charge is extremely subjective and the determination is made on a case-by-case basis.  No special service charges can be established in advance by ordinance. 

    The custodian must notify the requestor in advance of the special service charge.  The requestor has the right to disagree with the special service charge.  If the custodian and requestor cannot reach an agreement regarding the special service charge, the request is considered denied.  Requestors may challenge a custodian's special service charge by filing a Denial of Access Complaint with the Government Records Council or filing an action in the Superior Court of New Jersey.

    The following is an example of a special service charge for a voluminous request:

    Request: Meeting minutes from 2005 to present.  There are 1,000 pages of responsive records which will take the custodian 2 ½ hours to copy.  The Custodian may charge her direct hourly rate for the 2 ½ hours required to fulfill request.  Custodian must estimate cost and notify requestor before fulfilling the request. 

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  22. What is a broad and/or unclear request?
     

    A broad and/or unclear request fails to name specific government records, or requires the custodian to conduct research. 

    Example of an overly broad request: "Any and all records related to the construction of the new high school."

    The term "records" does not reasonably identify a specific government record.

    Example of a valid request: "Any and all e-mails between Jane Doe and John Smith regarding the construction of the new high school from January 1, 2009 to February 28, 2009."

    This request identifies a specific type of record, parties to the correspondence, dates and subject matter. 

    Example of a request that requires research: "all meeting minutes from 2011 in which the Council discussed Jane Doe, Human Resource Manager."

    This request is invalid because it requires the custodian to research/read through all the 2011 minutes to determine when the Council discussed Jane Doe, Human Resource Manager. 

    Example of a valid request:  "all meeting minutes from 2011." 

    The requestor would then have to conduct his own research to determine which minutes contain the subjects in which he is interested. 

    A custodian may either deny an overly broad/unclear request, or seek clarification of the request.  The custodian's request for clarification must be in writing, within seven (7) business days of receipt of the request.  If a custodian seeks clarification of an OPRA request, the response time clock stops until the requestor provides a response to the custodian.

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  23. Do I have to provide records to commercial entities under OPRA?
     

    Yes.  There is no restriction against the commercial use of government records under OPRA. 

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  24. How many OPRA requests can a requestor make to one agency?
     

    There is no restriction on the number of OPRA requests one person can submit to a particular agency.   

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  25. Can a requestor bring his/her own photocopier into an agency's office to make copies?
     

    Maybe.  A custodian may, in his or her discretion, allow the use of personal photocopiers by requestors, depending upon factors including, but not limited to, the specific circumstances of the request, the particular documents requested, the office hours of the agency, the available space within the office, the availability of personnel, the availability of appropriate electrical outlets, the consumption of energy, the need to preserve the security of public records or documents and protect them from damage, or other legitimate concerns. A custodian may require that photocopying be done on the agency's photocopier if to allow otherwise would disrupt operations, interfere with the security of public records, or expose records to potential damage.

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  26. Can I provide on-site inspection of a record but deny access to actual copies?
     

    No.  If a record is subject to public access under OPRA, the record is available for public inspection as well as copying.  Also, copyright law does not prohibit access to records that are otherwise accessible under OPRA. 

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  27. Can a requestor ask me for the same records under OPRA more than once?
     

    Maybe.  In Bart v. City of Paterson Housing Authority, 403 N.J. Super. 609 (App. Div. 2008), the Appellate Division held that a complainant could not have been denied access to a requested record if he already had in his possession at the time of the OPRA request the document he sought pursuant to OPRA. The Appellate Division noted that requiring a custodian to duplicate another copy of the requested record and send it to the complainant does not advance the purpose of OPRA, which is to ensure an informed citizenry.

    It is important to note that the court's findings turned on the specific facts of this case.  Specifically, the requestor attached a copy of the requested record to his OPRA request, thus proving that he was already in possession of said record at the time of his request.  As such, a custodian cannot deny access solely because he/she previously provided the records to the requestor.  The custodian must have evidence that the requestor is in possession of the records at the time of the OPRA request. 

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  28. Can I create specific OPRA hours?
     

    Yes!  However, OPRA provides that only the following public agencies may do so: 

    • Municipalities with a population of 5,000 residents or less;
    • Board of Education with total enrollment of 500 or fewer;
    • Public authority with less than $10 million in assets.

    What times?

    Not less than 6 regular business hours over not less than 3 business days per week, or the entity's regularly scheduled business hours, whichever is less. 

    What does this really mean?

    2 hours a day for 3 days a week, minimum, unless the agency's regularly scheduled business hours are less. 

    All other agencies must process OPRA requests during their regular business hours.

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  29. Can I deny access to any government records?
     

    Yes.  There are 24 specific exemptions to public access contained in OPRA.  If a record requested, or portions of a record requested, fit into any of OPRA's 24 exemptions, the custodian may deny access.

    The custodian must provide the requestor with the specific legal basis for the denial of access. 

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  30. What happens if only portions of a record are exempt from public access?
     

    Under OPRA, a government record that is otherwise publicly accessible may contain non-disclosable information that should be redacted.  Redaction means editing a record to prevent public viewing of material that cannot lawfully be disclosed. Words, sentences, paragraphs, or whole pages may be subject to redaction.

    How Custodians Must Redact

    If a record contains material that must be redacted, such as a social security number, redaction must be accomplished by using a visually obvious method that shows the requestor the specific location of any redacted material in the record.  For example, if redacting a social security number or similar type of small-scale redaction, custodians should:

    Make a paper copy of the original record and manually "black out" the information on the copy with a dark colored marker. Then provide a copy of the blacked-out record to the requestor.

    The blacked out area shows where information was redacted, while the double copying ensures that the requestor will not be able to "see-through" to the original, non-accessible text. The purpose is to provide formal notification to the requestor making it clear that material was redacted and is not being provided.

    If an electronic document is subject to redaction (i.e., word processing or Adobe Acrobat files), custodians should be sure to delete the material being redacted and insert in place of the redacted material asterisks to obviously indicate the redaction. Techniques such as "hiding" text or changing its color so it is invisible should not be used as sophisticated computer users can detect the changes and potentially undo the "hiding" functions.

    Explaining Why a Redaction is Made

    When redactions are made to a record, the custodian can use either the request form to explain why parts of a record are redacted, or use a separate document, depending on the circumstances, and must also refer to the OPRA exception which allows the redaction. This principle also applies if pages of information are redacted.

    The bottom line is that the requestor has a right to know the reason for the redaction, and the custodian has the responsibility to provide an explanation. 

    Custodians must identify the legal basis for each redaction.

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  31. I am concerned about releasing personal information contained on a government record. Can I redact information such as a citizen's home address?
     

    Maybe.  OPRA states in its Legislative Findings (N.J.S.A. 47:1A-1), "a public agency has a responsibility and an obligation to safeguard from public access a citizen's personal information with which it has been entrusted when disclosure thereof would violate the citizen's reasonable expectation of privacy." 

    Additionally, In Burnett v. County of Bergen, 198 N.J. 408 (2009), the court held that OPRA's legislative findings are more than a preamble, and impose an obligation on agencies to protect against disclosure of personal information. 

    What does this mean?  The GRC has routinely upheld a custodian's redaction of home addresses and home telephone numbers due to privacy concerns. 

    Each determination is made based on the specific facts of the complaint by balancing the requestor's need for the information against the agency's need to keep the information confidential.  Thus, there is no hard line rule regarding access to personal information such as home addresses. 

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  32. An employee/member of the agency submitted an OPRA request. Is he/she exempt from paying the OPRA fees?
     

    No.  Nothing in OPRA exempts anyone from having to pay the requisite fees to obtain government records.  If a custodian wants to provide records to any person free of charge, it is at the custodian's discretion. 

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  33. The requestor has not yet picked up the requested records. How long do I have to keep the request open?
     

    OPRA is silent on how long a custodian must keep a request open when the requestor fails to pick up the requested records.  OPRA only speaks to the timeframe within which a custodian must respond to the request, which is as soon as possible, but not later than seven (7) business days (unless immediate access records are requested).  Additionally, the GRC does not have any prior decisions addressing this issue.  However, as guidance the GRC suggests that custodians make all reasonable attempts to contact the requestor for a reasonable period of time to indicate that the records are ready.  After this reasonable period of time elapses, there is nothing in OPRA mandating a custodian from keeping a request open indefinitely.  What constitutes a "reasonable" amount of time is not defined anywhere in the statute. 

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  34. What happens if no records responsive to a request exist?
     

    If there are no records responsive to an OPRA request, the custodian is still required to respond to the request in writing, within the required time frame.  The custodian's response must simply indicate that no records responsive to the OPRA request exist.  Click here for an example.

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  35. What is a substantial disruption of agency operations?
     

    If a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record only after first attempting to reach a reasonable solution with the requestor that accommodates the interests of both the requestor and the agency. N.J.S.A. 47:1A-5.g.  

    This is a subjective determination based on an agency's resources available to fulfill a request. 

    Example:  Caggiano v. NJ Dept of Law & Public Safety, Div of Consumer Affairs, GRC Complaint No. 2007-69 (September 2007).  The Custodian certified that an extended review of records as contemplated by the Complainant (for approximately a week) would substantially disrupt agency operations by requiring the extended attendance of a Division of Consumer Affairs employee and a NJ State Police Officer at the Complainant's inspection of the requested records.   The Council stated that:

    "[t]he Custodian has reasonably offered to provide the Complainant with copies of all the records responsive upon payment of the statutory copying rates, which the Complainant has declined. The Custodian has also reasonably offered the Complainant two (2) hours to inspect the seven hundred forty-five (745) pages responsive to the Complainant's request, of which the Custodian states a substantial portion are records which the Complainant himself submitted to the Division. Additionally, the Custodian has reasonably offered to accommodate the Complainant's request by charging a special service charge for the hourly rate of a Division of Consumer Affairs employee to monitor the Complainant's inspection of the requested records in the event that said inspection exceeds two (2) hours. Further, the Custodian has reasonably offered to copy the remaining records at the OPRA copying costs in the event the Complainant exceeds a reasonable amount of time for the record inspection, which the Custodian states is one (1) business day. However, the Complainant objects to paying any inspection fees, as well as a two (2) hour inspection time limit."

    The Council held that "because the Custodian has made numerous attempts to reasonably accommodate the Complainant's request but has been rejected by the Complainant, the Custodian has not unlawfully denied access to the requested record under N.J.S.A. 47:1A-5.c. and N.J.S.A. 47:1A-5.g.

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  36. What should be included on my agency's OPRA request form?
     

    Every public agency is required to adopt an official OPRA request form. N.J.S.A. 47:1A-5.f.  The OPRA request form requirements are: 

    • Space for the name, address, and phone number of the requestor and brief description of the government record sought;
    • Space for the custodian to indicate which record will be made available, when the record will be available, and the fees to be charged;
    • Specific directions and procedures for requesting a record;
    • A statement as to whether prepayment of fees or a deposit is required;
    • The time period within which the public agency is required to make the record available;
    • A statement of the requestor's right to challenge a decision by the public agency to deny access and the procedure for filing an appeal;
    • Space for the custodian to list reasons if a request is denied in whole or in part;
    • Space for the requestor to sign and date the form;
    • Space for the custodian to sign and date the form if the request is fulfilled or denied.

    For convenience, the GRC's Model Request Form is available to download here. Custodians may add their agency's information onto this form and adopt the form as the agency's official form. 

    Agencies may also create their own request form, but must be careful not to include "misinformation."  Click here for an example

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  37. What happens if I need more information in order to respond to an OPRA request?
     

    A valid OPRA request must identify with reasonable clarity the specific government records sought. 

    Custodians may seek clarification of an overly broad or unclear request, or deny access to request.

    Clarification requests must be in writing within required response time. The response time stops until requestor responds providing clarification of the request, and then the response time begins anew. 

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  38. What happens if I do not maintain the requested records in my office?
     

    The custodian must obtain records responsive from appropriate departments/personnel.  This includes third parties.

    Example: Custodian is required to obtain requested attorney's bills which are maintained by special counsel's office, and not the municipality. 

    Custodians should document attempts made to access records from other departments/personnel.

    Other employees impeding access to government records can be found in violation of OPRA. 

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  39. I have a requestor who is harassing me with numerous OPRA requests. What can I do?
     

    OPRA is silent on the number of OPRA requests one person can submit to a particular agency.

    Remember there are options in OPRA to help with "overwhelming" OPRA requests: 

    • Requesting an extension of time to fulfill the request.
    • Assessing a special service charge.
    • Denying the request due to substantial disruption of agency operations.

     However, if you believe you are being harassed, you may have options in civil court.  There are no remedies in OPRA itself. 

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  40. Government Records Council

    What is the Government Records Council?

    OPRA established the Government Records Council (GRC) in the New Jersey Department of Community Affairs.

    The members of the Government Records Council are the Commissioner of the Department of Community Affairs or the Commissioner's designee; the Commissioner of the Department of Education or the Commissioner's designee; and three public members appointed by the Governor, with the advice and consent of the Senate, not more than two of whom shall be of the same political party.  A public member shall not hold any other state or local elected or appointed office or employment while serving as a member of the Council.

    OPRA permits the Government Records Council to employ an executive director and such professional and clerical staff as is necessary to help it carry out its functions.

    What are the duties of the Government Records Council?

    The Government Records Council has the statutory responsibility to: 

    • Establish an informal mediation program to facilitate the resolution of disputes regarding access to government records;
    • Receive, hear, review, and adjudicate a complaint filed by any person concerning a denial of access to a government record by a records custodian;
    • Issue advisory opinions, on its own initiative, as to whether a particular type of record is a government record which is accessible to the public;
    • Prepare guidelines and an informational pamphlet for use by records custodians in complying with the law governing access to public records;
    • Prepare an informational pamphlet explaining the public's right of access to government records and the methods for resolving disputes regarding access, which records custodians shall make available to persons requesting access to a government record;
    • Prepare lists for use by records custodians of the types of records in the possession of public agencies which are government records;
    • Make training opportunities available for records custodians and other public officers and employees to explain the law governing access to public records; and
    • Operate an informational Web site and a toll-free help-line staffed by knowledgeable employees of the Council during regular business hours which will enable any person, including records custodians, to call for information regarding the law governing access to public records and allow any person to request mediation or to file a complaint with the Government Records Council when access has been denied.

    What is the scope of the GRC's authority? 

    • The GRC only has authority over access to records maintained by a public agency at the time of an OPRA request.
    • The GRC lacks authority over the accuracy of record content.
    • The GRC does not have authority over the condition of records.
    • The GRC lacks authority over records retention.  For retention schedules, contact Records Management Services within the New Jersey Department of Treasury.
    • The GRC does not have jurisdiction over the Judicial or Legislative Branches of State Government or any agency, officer, or employee of those branches.           
    • The GRC does not have authority over other types of records requests (administrative, common law, discovery).
    • The GRC does not have authority over how a custodian uses his/her legal counsel.
    • The GRC cannot adjudicate a complaint currently pending or previously adjudicated in New Jersey Superior Court.

    What can the Government Records Council do for me?

    The Government Records Council can provide guidance regarding the accessibility of government records.  The GRC can inform you about any past decisions regarding the same or similar records, if any such cases exist.  However, the GRC cannot tell a custodian exactly how to respond to an OPRA request.   

    The GRC provides guidance, not legal advice.  What is the difference between guidance and legal advice? Guidance: think of the GRC as a reference library.  The GRC can give you all the resources you need (OPRA provisions, prior case law) so that you can make your own decision on whether to grant or deny access.  The GRC cannot make this decision for you.  Legal Advice: The GRC cannot tell custodians exactly how to respond to a request.  This is a conflict of interest in the event a complaint is filed with the GRC.  Only your legal counsel can give you legal advice.   

    Also, the GRC provides various OPRA training opportunities for records custodians.  Click here for the latest OPRA training schedule.

    How is a Denial of Access Complaint filed and handled?

    A complaint to the Government Records Council must be in writing on the official Denial of Access Complaint form.  The complaint should set forth the facts regarding the request for access to the government records, describing the specific records requested, and the circumstances under which the records were requested, and the denial of access by the records custodian of the public agency.  Complaint forms are available from the Council's office or from the Council's website here

    Upon receipt of a complaint, the Government Records Council offers the parties the opportunity to resolve the dispute through mediation before a neutral mediator.  Mediation is an informal, non-adversarial process having the objective of helping the parties reach a mutually acceptable, voluntary agreement.

    The mediator will help the parties to identify issues, will encourage joint problem-solving, and will explore settlement alternatives with the parties.

    If any party declines mediation or if mediation fails to resolve the matter to the satisfaction of the parties, the Government Records Council will initiate an investigation concerning the facts and circumstances set forth in the complaint.

    At the request of the Government Records Council, the public agency must provide a Statement of Information setting forth the facts regarding the request for access to the government records, and describing the specifics of the custodian's denial to those records.

    What happens when the Government Records Council starts investigating a complaint?

    All proceedings of the Government Records Council are conducted as expeditiously as possible.   

    Step 1: The Council must decide whether the complaint is within its jurisdiction or whether the complaint is frivolous or without any reasonable factual basis.

    Step 2: If the Council concludes that the complaint is outside its jurisdiction or that the complaint is frivolous or without factual basis, it will issue a decision in writing to dismiss the complaint.  A copy of the Council's decision is sent to the complainant and the records custodian. 

    Step 3: If the Council determines that the complaint is within its jurisdiction and is not frivolous and has a factual basis, the Council will notify the records custodian of the nature of the complaint and the facts and circumstances set forth in the complaint.

    Step 4: The custodian will have the opportunity to provide the Council with a response containing information concerning the complaint.

    Step 5: If the Council is able to make a determination about whether a record should be provided based upon the complaint and the custodian's response, the Council will issue a decision in writing and send it to the complainant and the records custodian.

    Step 6:  If the Council is unable to make a determination about whether a record should be provided based solely upon the submissions, the Council may conduct a hearing on the matter at its discretion.  The hearing will be held in conformity with the rules and regulations for hearings by a state agency in contested cases under the Administrative Procedure Act (N.J.S.A. 52:14B-1 et seq.), when they are applicable.

    Step 7:  Following the hearing, the Council will, by a majority vote of its members, render a decision as to whether the government record in question, or a portion of it, must be made available for public access to the requestor.

    Step 8:  If the Council determines by a majority vote that a custodian knowingly and willfully violated OPRA and is found to have unreasonably denied access under the totality of the circumstances, the Council will impose penalties provided for under OPRA.

    Step 9: A final decision of the Council may be appealed to the Appellate Division of the New Jersey Superior Court.

    Meetings held by the Council are subject to the Open Public Meetings Act.  The Council may move into closed session during that portion of any proceeding in which the contents of a contested record would be disclosed.

    Finally, the Council will not charge any party a fee in regard to complaints filed with the Council.

    What else should I know about Council hearings and actions?

    Prevailing Party Attorney's Fees

    If represented by counsel, a requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee. 

    Pursuant to Teeters v. DYFS, 387 N.J. Super. 423 (App.Div. 2006), a complainant is a "prevailing party" if he/she achieves the desired result because the complaint brought about a change (voluntary or otherwise) in the custodian's conduct.  Also, when the requestor is successful (or partially successful) via a judicial decree, a quasi-judicial determination, or a settlement of the parties that indicates access was improperly denied and the requested records are disclosed.

    Additionally, pursuant to Mason v. City of Hoboken and City Clerk of the City of Hoboken, 196 N.J. 51 (2008), a complainant is a "prevailing party" if he/she can demonstrate: 

    1. a factual causal nexus between plaintiff's litigation and the relief ultimately achieved; and
    2. that the relief ultimately secured by plaintiffs had a basis in law.

    If the decision of the public agency to deny access to the requested record is upheld, the public agency is not entitled to an attorney's fee from the requestor under OPRA.

    Knowing and Willful Penalty

    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 shall be subject to a civil penalty of $1,000 for an initial violation, $2,500 for a second violation, and $5,000 for a third violation that occurs within 10 years of an initial violation. The penalty shall be collected and enforced in proceedings in accordance with the Penalty Enforcement Law of 1999.

    An employee other than the custodian may be assessed a penalty. Appropriate disciplinary proceedings may be initiated against a public official, officer, employee, or custodian against whom a penalty has been imposed.

    GRC's Regulations

    For more information about the rules pertaining to the GRC's complaint process, see the GRC's promulgated regulations (N.J.A.C. 5:105 (2008)) on our website here

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