Changes to OPRA Ushers in Long Overdue Protections for Overburdened Schools

Changes to OPRA Ushers in Long Overdue Protections for Overburdened Schools

As many have noted, since the last time New Jersey’s famous government transparency law, the Open Public Records Act was updated, the nature of information access has undergone a complete transformation.  But this was not the only concern of the lawmakers who sought to revise OPRA.  Critical testimony that caught the attention of the Legislature came from the folks whose jobs are the most impacted by OPRA, local government employees.  The Covid pandemic and increasing civil unrest has put a spotlight on the often-overlooked role of local civil servants, including records custodians.  Local civil servants, from public school business administrators to municipal clerks to local election officials, work to support the infrastructure we all depend on without the extensive resources available to the federal or state government. This new law, P.L.2024, c.16., recognizes that the burden of excessive OPRA requests, especially those designed to harass local government or to benefit private business, should not fall on the shoulders of local civil servants. 

P.L.2024, c.16 makes several commonsense changes to aspects of OPRA that made the law financially burdensome to municipal and school district records custodians.  One of the most important aspects of shifting the burden away from records custodians is that P.L.2024, c.16 removes the guarantee that requestors who win disputed records requests will have their attorneys’ fees paid by the agency.  Under the new law, the court or the Government Records Counsel has the discretion to provide attorney’s fees in any case, but is only required to do so where the public agency unreasonably denied access, acted in bad faith, or knowingly and willfully violated OPRA.  This is particularly important as OPRA is a complex law with many exceptions and exemptions and an entire body of case law interpreting it.  Furthermore, municipal and school district records custodians have a legal duty to protect the privacy of their citizens and students.  Parsing what information must be turned over and what information must not be turned over is often an exceedingly complex legal question for which there is no clear answer but getting it wrong can cost agencies tens of thousands of dollars in legal costs.  This bill recognizes that agencies and the taxpayers that support them should not be punished for good faith actions.  Additionally, the new language allocates funds, $10 million, to support agency efforts to make documents available online.  This is an important recognition by the State that it should contribute to the financial cost of making records available to the public rather than passing the cost entirely on to agencies running on much more limited budgets. 

P.L.2024, c.16 also reduces some of the time pressures associated with OPRA’s demand for a quick turnaround on requests by recognizing that there may be unique challenges to accessing certain records.  Under the new law, a court can issue a protective order where an agency can show that requests are being made to substantially interrupt the performance of government function.   Additionally, custodians will not be required to complete requests for correspondence unless the request is limited by a reasonable time frame and identifies specific individuals.  Additionally, the new law creates an exception for security footage, for any public building, facility, or grounds unless the request identifies a specific incident that occurred, or a specific date and limited time period and does not to compromise the integrity of the security system.  Custodians can, under the new law, direct a requestor to a website if their request is for a document available online in its complete form.  Furthermore, the timeline for responding to records requests is automatically extended to 14 business days, on notice to the requestor, where the record must be redacted or 21 business days where the record is archived. 

P.L.2024, c.16 clarifies some of the language of the original OPRA and in doing so provides stronger protections for personal identifying information of citizens.  Under OPRA, public agencies always have the obligation to protect a citizen’s personal information, but the bounds of the phrase “personal information’ has been defined over time through case law and were not clearly defined in the statute.  Under P.L.2024, c.16, public agencies have the duty to protect, in addition to a citizen’s personal information, information that might reasonably lead to disclosure of a person’s personal information or information that may result in harassment, unwanted solicitation, identity theft, or opportunities for other criminal acts.  Personal identifying information is now defined as information that may be used, alone or in conjunction with other information, to identify a specific individual.  Information that is not disclosable now explicitly includes debit card numbers, bank account information, month and day of birth, personal email addresses required by an agency for government services, personally identifying information of persons under 18, personal identifying information disclosed on domestic animal permits, licenses, and registration, and metadata.

With these changes, the State government has recognized the impact of where the rubber of OPRA meets the road of local government, responding to the testimony of over a hundred mayors.  Governor Murphy voted for P.L.2024, c.16 in large part due to this testimony, explaining that “[s]erving in local elected office is a deeply thankless and glamour-free job, and I have consistently found mayors from both parties to be dedicated and hard-working public servants.”  Hopefully, these changes will eliminate the trend towards OPRA being used as a sword to attack our hardworking public servants and instead remain the beam of light flushing out government corruption as it was intended.