Citizen oversight of government is essential. To perform adequate oversight of New Jersey public agencies, which include public schools, municipal, county, and much of State government, citizens must have information. In New Jersey, one of the tools citizens can use to acquire information is the Open Public Records Act (“OPRA”). Under OPRA, citizens have the right to inspect or request copies of “public records,” which are broadly defined 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 . . . that has been made, maintained or kept on file . . . by any officer, commission, agency or authority of the State or of any political subdivision thereof . . . or that has been received in the course of his or its official business[.]”
Several categories of public records and information are exempt from disclosure, such as most personnel records, documents protected by the attorney-client privilege, or consultative, advisory or deliberative material.
To request records, citizens must make a written request. Except for certain New Jersey State agencies, OPRA requests may be made via regular mail, facsimile, electronic mail, or by personal delivery. (Some State agencies have rules or proposed rules that prohibit faxing requests). Here, the touchstone is that the request must be in writing; oral requests do not count.
Written requests must be on that agency’s OPRA request form. Many agencies post their OPRA request forms on their website. If they do not post their OPRA request form on-line, you must contact the agency and instruct them to send you a copy of their form. Alternatively, you may download a sample form from the Government Records Council website, www.state.nj.us/grc. However, if you do not use an agency’s official form when that agency has one, the agency may refuse to comply with your request unless it is on that agency’s official form.
When preparing an OPRA request form, be as specific as you can. If you request “any and all” records regarding a topic, your request will almost always be denied. Ways to be specific include:
- identifying the document by name;
- limiting the timeframe of your request;
- identifying the public employees who may have prepared the documents you are requesting;
- and include cross-references to other documents that mention the one you want.
For example, if the minutes of an agency meeting reference a proposal you want, then request “A copy of the proposal referenced on page two of the January 20, 2008 meeting minutes.”
OPRA requests must be for “documents.” Agencies are not required to produce documents that do not exist or that they (or their agents) do not have. In addition, a request for information is not an OPRA request. For example, a request for “the reasons why the Mayor has not shown up for the last ten council meetings” is not a request for specific documents.
Your OPRA request does not have to be for copies. OPRA requests may also be used to inspect public records. While agencies may charge for copies of documents, ordinarily they cannot charge for the inspection of public records. You should inspect documents when the files are voluminous or you are not exactly sure which record you need.
You may specify the medium in which you want the records. In other words, you can request records be mailed to you in hardcopy, made available for pick-up at the agency, be faxed to you, be emailed to you, or be reduced to an audiotape, CD, or DVD. Depending on how the agency stores the records, the agency may be entitled to charge a “special service charge” for converting the documents to the version you requested.
If you ask to inspect a file, insist that a public employee remain with you while you review the file. While a public employee’s presence may seem intrusive, having a public employee present protects you because the agency cannot later claim you stole, destroyed, or misfiled public records.
Public agencies must respond to your OPRA request immediately, but never more than seven business days after they received your request. Agency responses must be in writing; if a public agency calls you in response to your OPRA request, tell them to put whatever they want to say in writing. Under most circumstances, if an agency does not respond to your written request within seven days after receipt, that is a “deemed denial.”
Certain documents must be made available immediately, whether they are requested in person or in writing: budgets, bills, vouchers, contracts (including collective negotiation agreements and individual employment contracts) and public employee salary and overtime information.
Frequently, agencies will request for extensions of time to comply with your request. While you are not required to agree to an extension of time, it is a good practice to accommodate reasonable requests for extensions. However, according to a recent Government Records Council decision, if your request is not voluminous and is for documents that should be made available immediately, requests for extensions of time are unreasonable. Paff v. Maurice River, GRC Complaint No. 2007-168 (Interim Decision) (request for extension of time was unreasonable when documents requested were not voluminous, were not archived, and did not require an extraordinary amount of time to retrieve).
Sometimes agencies will claim that some of the documents or information you have requested is exempt from OPRA. While a broader discussion of exemptions must wait for another day, if a document you requested contains some information that is exempt, the agency must redact the exempt information and provide you the document.
Once you have received the documents you requested, check them against what you requested. Make sure that the agency either gave you all the documents you requested or they gave you a specific reason for not giving you any documents. The reasons must be specific as to each document; the agency cannot simply tick off ten reasons for a denial and say each of those reasons “may” apply. The agency must also specify a reason for each document.
If a public agency has violated OPRA, you have two remedies. You may either file a “Denial of Access” complaint with the Government Records Council (“GRC”) (www.state.nj.us/grc) or a lawsuit in New Jersey Superior Court. If you file in Court, a court action must be filed within 45 days after the agency denied your request. The GRC has no filing deadline.