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.

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."

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 requestor must use OPRA and cannot force requestors to submit an OPRA request. 

Yes.  OPRA is only one means by which an individual can gain access to records in the State of New Jersey. Other potential request methods include informal requests, requests made under common law or discovery, request processes set forth by statute or regulation, and other court processes (subpoenas, court orders, etc.). Further, the requestor is the only individual capable of invoking OPRA either by submitting the request on the agency’s official OPRA request form or by citing to OPRA in an equivalent writing inclusive of all information required to be on the form. If an individual chooses to invoke OPRA in a request, then the statutory provisions will apply.

However, some agencies have adopted policies requiring an individual to submit an OPRA request for records. Such a policy is at the agency’s prerogative and not statutorily required by OPRA, nor a GRC directive. Based on the foregoing, it is never “necessary” for anyone to file an OPRA request to obtain any type of record (unless individual agency policy dictates such).

Note that any challenge to a denial of a request for records under any request process outside of OPRA cannot be made to the Government Records Council, which only has jurisdiction 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 submit a request under the any of the other processes available to the public.

Anyone!  This includes commercial and out-of-state requestors.

Also, requestors may file OPRA requests anonymously without providing any personal contact information and same shall be considered complete. N.J.S.A. 47:1A-5(f). However, OPRA specifically prohibits anonymous requests for victims' records. Further, it should be noted that anonymous requestors are no longer permitted to file a complaint either with the courts or GRC. Id.

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 that includes all information required on the adopted form.

Requestors failing to include all form information on their written equivalent or including substantially more information than required on the form could result in the request being denied. Verbal requests are never OPRA requests. 

Click here to view an OPRA request on an official OPRA request form.  *This example is a non-agency specific template of the current established OPRA request form*. Note that the GRC is not a central repository for all records made or maintained in the State.*

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 include all information required on the adopted form as outlined in N.J.S.A. 47:1A-5(f) and (g).*

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, text messages, social media posts/messages, 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 nearly 40 specific exemptions contained in OPRA. 

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

OPRA defines "custodian of a government record" as that 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 separate custodians for particular types of records (most common occurrence is a Police Department).

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.

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 and third parties (such as OPRAmachine) have created systems that allow 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. The online request form, whether an actual form or portal, must contain all the required form information listed in N.J.S.A. 47:1A-5(f) and (g).

Requests must be submitted to the public agency that maintains physical custody of the requested records.  For example, a request for the City of Trenton's FY2018 budget should be submitted to the City of Trenton.  A request for payroll records of a school business administrator should be submitted to the school district in which the administrator is employed. 

Please note that the GRC is not a central repository for all records made or maintained within the State of New Jersey. Thus, OPRA requests submitted to the GRC seeking records from any other public agency will be returned to the requestor.

Requestors may not know the names of certain records.  The spirit of OPRA implies that custodians should assist requestors with identifying the records they are seeking, although a custodian's failure to do so is not a violation of OPRA. 

Records Management Services, within the New Jersey Department of Treasury, maintains listings of records which must be maintained by public agencies.  These listings may aid requestors in identifying the names of the records sought.  Click here to access Records Management Services' website.

No.  If there are any fees associated with a request, the custodian will contact the requestor regarding the specific cost and instructions on how to remit payment.  Requestors are not required to send payment with the request.

However, requestors may be required to identify the "maximum authorized cost" they are willing to pay should there be a fee associated with disclosure. Note that this does not represent an agreement to pay the identified amount, nor does it restrict the custodian from charging the total applicable cost where same exceeds the identified amount.

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

• Convert the record to the medium requested if same is available to the public agency and does not require a substantial amount of manipulation or programming of information technology or the services of a third-party vendor; or
• If the record is not maintained in the electronic medium or format and would require substantial amount of manipulation or programming of information technology or the services of a third-party vendor to convert thereto, at a minimum, provide a copy in the electronic format maintained by the public agency.

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 medium/format conversion that will result in a special service charge, the custodian must first inform the requestor that the charge will be incurred, including an explanation and itemized list of fees and charges, and give the requestor the opportunity to accept or reject the extra fee. N.J.S.A. 47:1A-5(c). If the requestor objects to the special service 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 is not required to provide access until the requestor has remitted payment.

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. 

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 an OPRA request to be forwarded to the appropriate custodian, or the employee may refuse to accept the request and direct the requestor to the appropriate custodian. Note that the OPRA request is not considered received until the custodian receives it.

Generally, custodians should fulfill a 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. N.J.S.A. 47:1A-5(i). However, there are several exceptions as follows:

• The requestor seeks “immediate access” records as outlined in N.J.S.A. 47:1A-5(e); where the custodian must respond “immediately” disclosing responsive records not to exceed twenty-four (24) months old.
• The requestor seeks information required to be disclosed by N.J.S.A. 47:1A-3(b), where the custodian must respond disclosing the information within twenty-four (24) hours or as a soon as practical.
• The requestor seeks records for a “commercial purpose” as defined in N.J.S.A. 47:1A-1.1, where the response time frame is fourteen (14) business days, but the custodian is required to notify the requestor of the additional time within seven (7) business days. N.J.S.A. 47:1A-5(i). However, the response time frame can be reduced to seven (7) business days upon payment of no more than two times the cost to produce the responsive records.
• The requestor seeks records requiring review for compliance with “Daniel’s Law” (N.J.S.A. 47:1B-1, et seq.), where the response time frame is fourteen (14) business days, but the custodian is required to notify the requestor of the additional time within seven (7) business days. N.J.S.A. 47:1A-5(i).
• The requestor seeks certain types of election records, as outlined in N.J.S.A. 47:1A-5.3, where the response time frame is immediate but no later than two (2) business days.
• The requestor submits a request during a state of emergency, public health emergency, or state or local disaster emergency, where the statutory time frame does not apply. N.J.S.A. 47:1A-5(i)(2). However, custodians should still attempt to respond within the statutorily applicable time frame where reasonable.
• The requestor seeks certain types of specific election records as outlined in N.J.S.A. 47:1A-5.3, where the response time frame is generally immediate but not to exceed two (2) business days.

Note: Fire district employing one or fewer full-time employees serving as custodians may add seven (7) business days to the seven (7) or fourteen (14) business day response time frames.

Day One (1) is the day following the custodian's receipt of the request.  The custodian's response must grant access to the records you seek, deny access to the records you seek, ask for clarification of your request or ask for an extension to time to fulfill your request.

Yes.  As noted above, 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 within 24 months of the OPRA request. Any of the forgoing older than 24 months are not subject to immediate access.

Immediate access means at once, without delay.  Exceptions may include instances in which the requested records are are voluminous, 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 reduce such reason to writing and request an extension of time to comply with the immediate statutory requirement. 

Yes.  Custodians may seek extensions of time beyond the applicable statutory response time frame.

N.J.S.A. 47:1A-5(i)(1) contemplates two (2) types of extensions:

• If records are in storage or archived, a custodian may take an extension not to exceed twenty-one (21) business days from the date the requestor is noticed of the extension.
• If there exists “unforeseen circumstances or circumstances that otherwise necessitate additional time”, a custodian may take an extension of time that is reasonable. See Ciccarone v. v. N.J. Dep’t of Treasury, GRC Complaint No. 2013-280 (Interim Order dated July 29, 2014).
   

Custodians must notify the requestor in writing 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. 

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. OPRA also permits an electronic response if the OPRA request was submitted electronically. The custodian's written response must either grant access, deny access, seek clarification or request an extension of time to fulfill the request.  

If the custodian fails to respond to the requestor within seven (7) business days after receiving a request, or other applicable statutory time frame, the failure to respond will be deemed a denial of the request. 

Requestors may want to contact the custodian to check the status of the request.  Requestors may also choose to file a complaint against the custodian for failing to respond to the request within the statutorily mandated time frame.

Contact the custodian of the agency to which you submitted your request.  The GRC is unable to provide status updates for requests submitted to other public agencies. 

N.J.S.A. 47:1A-5(b) provides that:

(1)A copy or copies of a government record may be purchased by any person upon payment of the fee prescribed by law or regulation.
 

Except as otherwise provided by law or regulation, the fee assessed for the duplication of a government record embodied in the form of printed matter shall be $0.05 per letter size page or smaller, and $0.07 per legal size page or larger.

Access to electronic records and non-printed materials shall be provided free of charge, but the public agency may charge for the actual costs of any needed supplies such as computer discs.

(2) No fee shall be charged if the request is completed by directing the requestor to the requested government record that is available on the public agency’s website or the website of another public agency.

No fee shall be charged to a victim of a crime for a copy or copies of a record to which the crime victim is entitled to access, as provided in [OPRA].
 

[Id.]

Based on the forgoing, custodians may apply the following copy costs to OPRA requests:

Custodians may charge OPRA requestors any 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.

 
Custodians must charge a flat rate of $0.05 per letter size (8 ½” x 11”) page or smaller, and $0.07 per legal size (8 ½” x 14”) page or larger, if providing a requestor with paper copies. For example, a custodian providing access to three (3) pages of printed meeting minutes on letter size pages would charge a requestor $0.15 ($0.05 per page for three (3) pages = $0.15).

 
Records provided via e-mail and facsimile are free of charge. However, custodians may charge for the actual cost to provide access to electronic records on supplies such as flash drives, CDs, DVDs, videotapes, audiotapes, etc. The “actual cost” is the specific fee the agency paid to purchase the materials. 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).

There could be exceptions to the “free of charge” policy. In one instance, the Council allowed a public agency to charge the cost associated with redactions because they did not have the capability to redact electronically prior to providing the responsive records. See Paff v. Twp. of Teaneck (Bergen), GRC Complaint No. 2010-09 (Interim Order dated May 24, 2011).

OPRA permits the custodian to require a deposit against costs for reproducing records sought whenever they anticipate that reproduction cost for the records requested will exceed $5.00.

A special service charge is essentially a labor fee that may be charged when a request is voluminous, requires extensive time and effort, or when the request requires extensive use of technology.  Special services charges should be 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 inclusive of a explanation for and itemized cost.  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. It should be noted that a special service charge shall be presumed reasonable and the requestor/complainant will have to prove that it is unreasonable in a complaint.

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

Request: Meeting minutes from 2005 to present.  There are over 1,000 pages of responsive records which will take the custodian 6 1/2 hours to copy. The custodian may charge her direct hourly rate for the 6 1/2 hours required to fulfill request. The custodian must estimate cost and notify requestor before fulfilling the request, including an explanation and itemized cost. 

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 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 onto requestor. 

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

A custodian is not required to fulfill an OPRA request if they determine “. . . that the request would require research and the collection of information from the contents of government records and the creation of new government records setting forth that research and information.” N.J.S.A. 47:1A-5(g).

This language reflects the longstanding ability of custodians to deny access to requests considered invalid. The validity of an OPRA request typically falls into three (3) categories:

1. A request that is overly broad (“any and all,” requests seeking “records” generically, etc.) and requires a custodian to conduct research. MAG Entm’t, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 546 (App. Div. 2005); Donato v. Twp. of Union, GRC Complaint No. 2005-182 (January 2007).
2. A request seeking non-electronically stored information or asking questions. See e.g. Rummel v. Cumberland Cnty. Bd. of Chosen Freeholders, GRC Complaint No. 2011-168 (December 2012).
3. A request that is submitted on a form invoking some other process or a non-form request not invoking OPRA. See e.g. Naples v. N.J. Motor Vehicle Comm’n, GRC Complaint No. 2008-97 (December 2008).

The criteria for a valid OPRA request seeking communications, including e-mails, text messages, other forms of correspondence, and social media communications are comprised of:

“[S]pecific job title or accounts” (including “specific individuals by . . . job title and position”)
“[A] specific subject matter”
“[A] reasonable time period”

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 the applicable time frame after 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. Once clarification is received, the time frame begins anew.

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 follows the new statutory standard for communications and would be considered valid.

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

However, a person seeking to directly, or through another party, use records for a “commercial purpose” must certify to this fact as part of their OPRA request. For purposes of clarity, “commercial purpose” means:

[T]he direct or indirect use of any part of a government record for sale, resale, solicitation, rent, or lease of a service or any use by which the user expects a profit either through commission, salary, or fee.

[N.J.S.A. 47:1A-1.1.]

The GRC notes that there are exceptions to this definition, which are outlined therein. They include news media, journalists, labor unions, and non-profits if they are not selling the information to a third party with expectation of a fee. Id.

A requestor who intends to use the record for the above purpose or intends to give the records to another person for such purpose, shall certify that the intended use is for “commercial purposes”. A fourteen (14) business day response time frame applies to “commercial purpose” requests unless the requestor pays up to two times the cost to reduce the time frame to seven (7) business days. Custodians must notify those seeking records for a “commercial purpose” of the fourteen (14) business day response time frame within seven (7) business days.

Finally, a requestor intentionally failing to certify that they will use the record for a commercial purpose “shall be subject to a civil penalty of $1,000 for the first offense, $2,500 for the second offense, and $5,000 for each subsequent offense.” N.J.S.A. 47:1A-11. This fine may be imposed by the courts.

OPRA does not limit the number of OPRA requests one person can submit to a particular agency. However, OPRA does contain certain limitations as follows:

• Requestors cannot submit an OPRA request to multiple agencies in a single transmission. N.J.S.A. 47:1A-5(g).
• Custodians can deny access to OPRA requests submitted to multiple custodians within one public agency if an identical or substantially similar request is already pending before the agency. N.J.S.A. 47:1A-5(g).

Maybe.  A custodian may, in their discretion, allow the use of personal copying devices (photocopiers, scanners, etc.) by requestors depending upon factors including, but not limited to, the specific circumstances of the request, the particular documents requested, office hours, available space within the office, availability of personnel, availability of electrical outlets, consumption of energy, the need to preserve the security of records and protect them from damage, or other legitimate concerns. A custodian may require that photocopying or scanning be done on the agency’s equipment if it would not disrupt operations, interfere with the security of records, or expose records to potential damage.

No.  If a record is subject to public access under OPRA, the record is available for public inspection as well as copying. Also, it is presently unclear whether copyright law acts prohibit access to records that are otherwise accessible under OPRA.

Maybe. 

The Council often looked to Bart v. City of Paterson Hous. Auth., 403 N.J. Super. 609 (App. Div. 2008) when addressing this issue. There, the Appellate Division held that a complainant could not have been denied access to a requested record he admitted he held in his possession at the time of the OPRA request. 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.

With the above in mind, OPRA provides that a custodian is not required to fulfill an OPRA request for records identical to a prior OPRA request if the information in the responsive record has not changed. This provision does not apply to periodic requests for regularly updated records. N.J.S.A. 47:1A-5(i).

Yes!  Who?

• 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.

Yes.  There are nearly 40 specific exemptions to public access contained in OPRA, including one that recognizes other statutory, regulatory, or executive order exemptions.  If a record requested, or portions of a record requested, fit into any of OPRA's exemptions, the custodian may deny access.

The custodian must provide the requestor with the specific legal basis for the denial of access at the time of their response.

Under OPRA, a government record that is otherwise publicly accessible may contain non-disclosable information that should be redacted. N.J.S.A. 47:1A-(g). Redaction means editing a record to prevent disclosure of information that is exempt from disclosure. Words, sentences, paragraphs, or whole pages may be subject to redaction.

How Custodians Can Redact

If a record contains information 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.

If full pages are to be redacted, the custodian should give the requestor a visible indication that a particular page of that record is being redacted, such as a blank sheet bearing the words “Page Redacted”, or a written list of the specific page numbers being withheld. The purpose is to provide notice 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 either asterisks or some other obvious indication of the redaction. Techniques such as “hiding” text or changing its color so it is seemingly invisible should not be used because: 1) it is not visually obvious; and 2) sophisticated computer users can detect the changes and potentially undo the redactions.

Explaining Why a Redaction is Made

When redactions are made to a record, the custodian can use either the request form to explain the lawful basis for those redactions or use a separate document to identify the redactions and lawful basis therefor, such as a document index. This principle also applies if pages of information are redacted. Sometimes it may be clear from inspection, such as where record form field called “Social Security Number” has been blacked out where the number would appear. The bottom line is that the requestor has a right to know the reason for the redaction, and the custodian has the legal obligation to provide the specific lawful basis therefor per N.J.S.A. 47:1A-5(g).

Custodians must identify the legal basis for each redaction!! This may be achieved in any number of ways, including but not limited to annotations next to the redaction or a document index.

N.J.S.A. 47:1A-6 provides that a person who is denied access to a government record and “is accurately identified by name” can choose to:

1. File suit in Superior Court: Inquiries regarding the proper way to file a complaint with New Jersey Superior Court should be directed to the relevant county court. Additionally, requestors may consider consulting with an attorney to learn about initiating and pursuing lawsuits in the courts.
2. File a complaint with the [GRC].

The GRC’s regulations at N.J.A.C. 5:105-2.1 previously implemented a 60-calendar statute of limitation but allowing individuals to submit a motion to file within time. While the 45-calendar day time frame now supersedes that regulatory provision, the GRC will continue to entertain motions to file within time for untimely filed complaints until further notice.

To start a summary (expedited) lawsuit in the New Jersey Superior Court, a written complaint and an order to show cause must be prepared and filed with the court.  The court requires a filing fee and the requestor must serve the lawsuit papers on the appropriate public official(s). 

The court will schedule a hearing and resolve the dispute.  Decisions may be appealed to the Appellate Division of the New Jersey Superior Court.   Successful plaintiffs may be entitled to reasonable attorney fees. Plaintiffs should consider consulting with an attorney to learn about initiating and pursuing lawsuits in the New Jersey Superior Court.

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 GRC are the Commissioner of the Department of Community Affairs or the Commissioner's designee who serves as chair; four (4) public members directly appointed by the Governor, not more than two of whom shall be of the same political party; two (2) public members from persons recommended by the President of the Senate and directly appointed by the Governor, not more than one of whom shall be from the same political party; and two (2) public members from persons recommended by the Speaker of the Assembly and directly appointed by the Governor, not more than one of whom shall be from the same political party.  A public member shall not hold any other state or local elected office while serving as a member of the Council.

OPRA permits the GRC 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 GRC 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;

• Make training opportunities available for records custodians and other public officers and employees to explain the law governing access to public records; and

• Promulgate rules and regulations to establish a uniform government record request form for all government record requests permitted for use by any public agency that includes the required form components as set forth in N.J.S.A. 47:1A-5(f). The form shall include certification that a party to a legal proceeding may not request a government record if the record sought is the subject of a court order or a pending discovery request. The council shall make the form available electronically and in print and shall make the form available to incarcerated individuals; and

• Operate an informational website 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 GRC when access has been denied.
   

The GRC is also required to periodically review its website and make adjustments as needed to achieve maximum clarity and usefulness of all resources posted thereon.

What is the scope of the GRC's authority? 

• The GRC does not have authority over the accuracy or condition of records.
• The GRC lacks authority over records retention. For retention schedules, contact Records Management Services within the New Jersey Department of Treasury, Division of Revenue and Enterprise Services.
• The GRC does not have jurisdiction over the Judicial or Legislative Branches of State Government or any agency, officer, or employee of those branches. N.J.S.A. 47:1A-7(g).
• The GRC does not have jurisdiction over Open Public Meetings Act (“OPMA”) issues. Questions regarding OPMA should be directed to a county prosecutor’s office.
• The GRC does not have authority over other types of request processes (administrative, common law, discovery, etc.).
• The GRC does not have authority over how a custodian utilizes their legal counsel.
• The GRC cannot adjudicate a complaint where a parallel action is pending or was previously adjudicated in New Jersey Superior Court.

What can the Government Records Council do for me?

The GRC can provide guidance regarding the accessibility of government records. 

If you want to request a specific record or you have been denied access to a specific record, the GRC can inform you about any past decisions regarding the same or similar records, if in existence, for guidance. 

The GRC can also provide guidance regarding the request process and what to expect once an OPRA request is submitted.

The GRC can investigate your allegation of a denial of access should you decide to file a formal Denial of Access Complaint.  

The GRC does not engage in pre-complaint intervention and cannot provide legal advice. Further, the GRC cannot force a records custodian to provide access to a record prior to the filing of a Denial of Access Complaint.  Orders directing a custodian to disclose records to requestors only occur after the GRC is able to conduct a full analysis of the request and it is determined that the Custodian unlawfully denied access.

How is a Denial of Access Complaint filed and handled?

A complaint to the GRC must be in writing on the proper Denial of Access Complaint form. N.J.A.C. 5:105-23(c). A complete complaint sets forth:

1. The facts regarding the request for access to the government records;
2. The specific records requested, as well as the circumstances under which the said records were sought;
3. The denial of access by the records custodian of the public agency; and
4. The legal arguments as to why the requestor believed the request was unlawfully denied.

The complaint must also, to the extent possible, provide supporting documentation as outlined on page 2 of the Denial of Access Complaint form. Incomplete complaint forms, including those filed beyond the 45-day statute of limitation without a motion to file within time, will be returned to the filer advising of the deficiency. Further, complaints will not be processed until the requestor cures those deficiencies and submits their complaint.

Additional Requirements

• Complaints must be filed within 45 calendar days of the alleged denial.
• Complaints must include the complainant’s name, address, telephone number or fax number, and email address, if available. N.J.A.C. 5:105-2.3(l).
• Complaints in excess of fifty (50) pages are required to be submitted in hardcopy. N.J.A.C. 5:105-2.3(c).
• Anonymous requestors are not permitted to file a complaint per N.J.S.A. 47:1A-5(f).

Complaint forms are available from the Council's office or from the Council's website here.

The GRC offers the parties the opportunity to resolve the dispute through mediation with a neutral mediator.  Mediation is an informal, non-adversarial process having the objective of helping the parties reach a mutually acceptable, voluntary agreement. Mediation is not an arbitration and is only available to requestors who file a formal Denial of Access Complaint. 

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 within 45 calendar days from the date the decision is rendered. N.J.S.A. 47:1A-7(e). Parties also have the option of filing a request for reconsideration directly with the GRC within 10 business days. N.J.A.C. 5:105-2.10.

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?

Letters of Representation

If a complainant or “public agency” is represented by an attorney in a Denial of Access Complaint, the GRC requires that they submit a formal letter of representation. N.J.A.C. 5:105-2.3(f); 2.4(f). Absent receipt of the formal letter of representation, the GRC will not update the service list and will only communicate with the complainant and custodian identified in the complaint.

Ex Parte Communications

The GRC’s regulations define “ex parte” communications, which are substantive complaint submissions not shared with all complaint parties and provide that these communications will not be considered as part of an adjudication. N.J.A.C. 5:105-1.3. The GRC will not consider any substantive submissions that are not copied to all parties.

Intervenors

The GRC’s regulations define a process for intervenors, specifically N.J.A.C. 5:105-2.2(b). This regulatory provision provides a step-by-step process on how to submit an application for intervention, the time frame within which a party must file objections, the factors that the GRC needs to consider as part of its determination, and the specific manner in which the GRC must notify the parties of its decision.

Dismissal Without Prejudice Due to Disclosure

The GRC and courts are required to dismiss a complaint “without prejudice” (meaning a complaint can be refiled after dismissal) when the public agency discloses the records at issue in a Denial of Access Complaint within seven (7) business days after receipt of the complaint. N.J.S.A. 47:1A-6. The GRC notes that prevailing party attorney’s fees, discussed below, may be considered as part of this dismissal.

Prevailing Party Attorney’s Fees

If represented by counsel, a requestor who prevails in any proceeding may be entitled to a reasonable attorney’s fee. N.J.S.A. 47:1A-6. OPRA provides that the fee shifting provision is permissive, meaning there may be instances where a requestor prevailing in a proceeding may not receive an award of attorney’s fees. However, the prevailing party fee award becomes mandatory when the agency: 1) unreasonably denied access to a record; 2) acted in bad faith; or 3) committed a knowing and willful violation. Id. As noted above, a fee award may also be considered if a complaint is dismissed without prejudice because the agency disclosed the records at issue within seven (7) business days after receiving a Denial of Access Complaint. Id.

Pursuant to Teeters v. DYFS, 387 N.J. Super. 423 (App. Div. 2006), a complainant is a “prevailing party” if they achieve 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 they can demonstrate that: 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.

Prevailing party fees are not awarded when a requestor does not prevail, even if the Council finds that a technical violation of OPRA occurred. Additionally, fees cannot be awarded to attorneys representing themselves in a complaint. See Boggia v. Borough of Oakland, GRC Complaint No. 2005-36 (April 2006); Feld v. City of Orange Twp., 2019 N.J. Super. Unpub. LEXIS 903 (App. Div. 2019).

Knowing and Willful Penalty

OPRA provides that:

If 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, the public agency employing the individual(s) shall be subject to a civil penalty of $1,000 for an initial violation, $2,500 for a second violation that occurs within 10 years of an initial violation, and $5,000 for a third violation that occurs within 10 years of an initial violation.

[N.J.S.A. 47:1A-11(a) (emphasis added).]

The penalty shall be collected and enforced in proceedings in accordance with the Penalty Enforcement Law of 1999. N.J.S.A. 47:1A-11(c). Further, an agency is permitted to take appropriate disciplinary action against any individual(s) on whom the civil penalty has been imposed. N.J.S.A. 47:1A-11(d). The GRC notes that persons other than the custodian may be subject to the civil penalty. See Johnson v. Borough of Oceanport (Monmouth), GRC Complaint No. 2007-107 (Interim Order dated February 25, 2009).

GRC’s Regulations

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