Jun 10, 2024

On June 5, Governor Murphy signed into law Bill S-2930 which will become effective on September 3, 2024. The Bill modernizes the State’s existing OPRA law, creating a more cohesive framework for requestors attempting to gain access to documents that are created and maintained by public officials.

Some of the specific provisions of S-2930 that alter the existing OPRA framework include:

  • A uniform records request form is to be created and adopted by municipalities which will allow custodians to deny outright requests that do not include the requestor’s name, address, email, and phone number. This denial would be barred against anonymous complaints.
  • If a request includes more information than required and needs too much clarification or if it does not include all information required, it can be denied.
  • Obtaining letters, emails, text messages and social media postings will become more difficult, with a requestor required to identify the person or job title, subject and “reasonable” time frame; even then, a request could be denied if it “would require research and the collection of information from the contents of government records and the creation of new government records.”
  • Immediate access to documents such as budgets, bills, vouchers, contracts and public employee salary and overtime information would no longer be required if that information is more than two years old.
  • If an agency has a copy of a record but did not create that record, it would not have to provide it, but instead would direct the person requesting the document to the proper agency, if known.
  • Most of the metadata behind a document would be exempt; only information about the author, editor and time of change would be provided.
  • Custodians are allowed to post records in an online portal to which they can direct requestors instead of providing records.
  • A custodian who is supposed to fulfill a request within seven days could take twice that long if redactions need to be made to the document.
  • Fulfilling a request for a document that is in storage can take an additional 21 days.
  • Removes anonymous requestors’ ability to challenge a denial in court or before the agency, leaving custodians to face no penalties for bad faith denials of anonymous requests.

For the first time, agencies can sue records requestors if they believe they filed requests to stunt government operations. Judges, in response, can issue protective orders limiting the number and scope of records the person could request.

The Bill also affords records custodians the ability to impose special service charges on requests they deem to involve extra time and effort as well as allowing for double charging for records that are already accessible by the public. The burden would be placed on the requestors to prove special fees are unreasonable.

Records custodians will also have a greater autonomy to determine whether or not to grant records request. The words “reasonable” and “reasonably” appear 33 times in the Bill with their inclusion leaving many of the provisions open to interpretation by the records custodian. While some agencies will err on the side of transparency, others can choose to deny requests on the basis that they are “unreasonable.”

Likewise, custodians are allowed to automatically deny requests submitted while an identical or substantially similar request is pending. This will halt some types of investigations that involve requesting identical documents from multiple agencies. Specifically, ff an individual is in litigation with an agency, they would be barred from submitting an OPRA request.

Most significantly, the Bill abolishes the mandatory awarding of attorney’s fees for parties who successfully challenge a denial in court. Previously, a court would award “reasonable” attorney’s fees to the prevailing party with this fee-shifting provision operating as the primary enforcement mechanism. The Bill only requires attorney’s fees if a judge finds the custodian acted in bad faith, unreasonably denied access, or knowingly violated the law.

We recommend that public entities and local boards review their record requests policies and bring them into compliance with the Bill’s changes to the current OPRA provisions. It may also be beneficial for local Boards to review their websites and/or online portals to ensure that all publicly accessible records are up to date so that requestors can be directed to these sites in lieu of providing records.

Chasan Lamparello
Mallon & Cappuzzo, PC

300 Lighting Way
Suite 200
Secaucus, NJ 07094
phone icon (201) 348-6000
fax icon (201) 348-6633
info@chasanlaw.com

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