On June 5, 2024, Governor Murphy signed Senate bill S2930/A4045 into law.  This bill has the effect of overhauling the New Jersey Open Public Records Act (“OPRA”), N.J.S.A. 47:1A-1, et seq. so that it comports with the digital age and facilitates the minimization of various other challenges that public agencies often encountered in their compliance with the law.  The amendments take effect on the Tuesday after Labor Day (September 3, 2024).  The modified provisions will not apply to OPRA requests submitted prior to the effective date.  We encourage all records custodians of public agencies to review the new version of the OPRA law in its entirety.  The salient changes consist of the following:

N.J.S.A. 47:1A-1

While a public agency previously had an obligation to safeguard from public a citizen’s personal information when the disclosure would violate the citizen’s reasonable expectation of privacy, a public agency is now also required to safeguard “information that might reasonably lead to disclosure of a person’s personal information” when their reasonable expectation of privacy would be violated “or when the public agency has reason to believe that disclosure of such personal information may result in harassment, unwanted  solicitation,  identity  theft,  or  opportunities  for  other criminal acts.”

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

            The following information will now be considered exempt from the definition of a “government record”:

1) administrative or technical information regarding tablets, telephones, electronic computing devices, applications, or devices which operate on or as a part of a computer network or related technologies within the same, which shall include system logs, event logs, transaction logs, tracing logs, or any logs which are reasonably construed to be similar to the same and generated by the devices or servers covered within this paragraph, which, if disclosed, could jeopardize computer security or related technologies;

2) security alarm system activity and access reports, including video footage, for any public building, facility, or grounds unless the request identifies a specific incident that occurred, or a specific date, and a limited time period at a particular public building, facility, or grounds, and is deemed not to compromise the integrity of the security system by revealing capabilities and vulnerabilities of the system;

3) that portion of any document which discloses the debit card number, bank account information, month and day of birth, any personal email address required by a public agency for government applications, services, or programs;

4) that portion of any document that requires and would disclose personal identifying information of persons under the age of 18 years, except with respect to the disclosure of driver information  by the New Jersey Motor Vehicle Commission  as permitted by [N.J.S.A. 39:2-3.4] or the disclosure of driver information to any insurer or insurance support organization, or a self-insured entity, or its agents, employees, or contractors, for use in connection with claims investigation activities, antifraud activities, rating, or underwriting.

5) Personal identifying information that includes the following data elements: name, social security number, credit card number, debit card number, bank account information, month and day of birth, email address, any telephone number, the street address portion of any person’s primary or secondary home address, or driver license number.

N.J.S.A. 47:1A-5

            The newly enacted OPRA law creates a different time period for responding to generic OPRA requests v. OPRA requests submitted for commercial purposes.  While generic OPRA requests must still be responded to within seven business days, the new law lengthens the amount of time for custodians to respond to OPRA requests submitted for a commercial purpose to 14 business days, and a request is not considered submitted until it is actually received by the records custodian (in contrast from constructive notice, such as when a request is submitted on a certain date but the custodian is out of the office).  Future extensions will be limited to 21 business days from the date that the requestor is advised of the necessity for an extension. Additionally, immediate access to government records shall not be required to be granted for documents over 24 months old.

            Public agencies will no longer be required to accommodate OPRA requests seeking communications and social media postings/messages unless the request contains – – 1) A specific job title or accounts to be searched; 2) A specific subject matter; and 3) Is confined to a reasonable time period.  With respect to item 1, it will be considered sufficient for a requestor to identify specific individuals by the individual’s job title and position only.

It was previously a public agency’s burden to establish the reasonableness of a “special service charge” in which preparation of the response to an OPRA request involved an “extraordinary expenditure of time and effort to accommodate the request.”  The law now creates a presumption that such a charge is reasonable and places the burden upon the requestor to demonstrate that the fees or charges are unreasonable.

            Government records will be required to be made available to the public on a publicly available website to the extent feasible.  When an OPRA request for information contained on the public agency’s website is submitted, the custodian shall provide the requestor with directions to assist in locating the record on the website.

            The records custodian will be required to adopt the form established by the Government Records Council (“GRC”).  Although a requestor will not be required to utilize the specific form when submitting an OPRA request, the applicable subsection provides with respect to the form:

A request shall be submitted by a requestor in the form adopted by the custodian and the custodian may deny a request that is incomplete, except that a requestor indicating the request is being submitted anonymously shall not be grounds for denial.     A completed form adopted by the custodian, a letter, or an email from a requestor including all of the information required on the adopted form shall suffice in place of a completed form as a valid government record request. If the letter or email from a requestor includes substantially more information than required on the adopted form and requires more than reasonable effort to clarify the information, the custodian may deny the request.  If a letter or an email from a requestor does not include all of the information required on the adopted form, the custodian may deny the record request. A request may be submitted anonymously provided, however, that anonymous requestors shall not be permitted to institute proceedings pursuant to [N.J.S.A. 47:1A-6].  A request that is submitted anonymously shall not be considered incomplete. The form also shall include space for a requestor to certify whether the government record will be used by that requestor or another person for a commercial purpose, and the requestor shall be required to provide this information for the request to be fulfilled.

            This statute also limits requestors from submitting a particular OPRA request to the custodian of only one public agency, and “submission of repeated requests to multiple custodians in the same public agency for the same record, while an identical or substantially similar request is pending in the agency, shall permit the custodian to deny the request.”

N.J.S.A. 47:1A-6

            This is the section that has garnered the most attention, as it substantially limits requestors’ attorneys from recouping their fees from public agencies.  The current law mandates the Superior Court of the GRC from ordering the reimbursement of reasonable counsel fees in any instance in which a requestor prevails.  The new law makes such a counsel fee award discretionary, except in instances where “the public agency has been determined to have unreasonably denied access, acted in bad faith, or knowingly and willfully violated [OPRA].”  The new law further provides, “If the records sought are produced by the public agency within seven business days of service of an action in Superior Court or a complaint before the Government Records Council, upon notification to the Superior Court or the Government Records Council, the matter shall be dismissed without prejudice and the requestor may be entitled to a reasonable attorney’s fee if the custodian knew or should have known that the denial of access violated [OPRA].”

The new law also formally establishes a 45 day statute of limitations for denial of access challenges commenced in both the Superior Court and GRC, which had previously only been judicially created for Superior Court denial of access challenges (and the GRC only recently created a 60 day statute of limitations).

            From our experience, denial of access complaints that were commenced in the GRC would languish for years.  The new law provides that beginning 18 months following the effective date of the law, the GRC must adjudicate all complaints that within 90 days of the complaint’s filing, with the ability to extend an additional 45 days for good cause.

N.J.S.A. 47:1A-11

            Lastly, in the rare circumstances in which “willful misconduct” penalties were imposed against records custodians, they were personally liable to pay such a monetary penalty.  The new law only allows such monetary penalties to be imposed upon the public agency that employs the custodian.  Additionally, monetary penalties will be imposed upon requestors who intentionally fail to certify that a records request is for a commercial purpose.

Should you have any questions or need additional guidance regarding compliance with the updated OPRA law, please do not hesitate to contact us.