NJ Passes Sweeping Reforms to OPRA Law – Impact on Investigations To Be Determined

Sweeping changes to New Jersey’s Open Public Records Act may pose new challenges to investigators and the public alike when it comes to public record requests.

On June 5, 2024, New Jersey Governor Phil Murphy (D) signed a controversial bill into law overhauling New Jersey’s existing Open Public Records Act (OPRA), the first changes made to OPRA since its passing over 20 years ago. For further background, New Jersey’s OPRA is a state law that replaced the previous “Right to Know Law.” Compared to its predecessor, OPRA expanded the public’s right to access government records, created an updated appeals process when public access requests are denied, and defined what qualifies as a “government record.” While the transition from the “Right to Know Law” to OPRA resulted in an overall expansion of public records access, advocates fear that the recent changes will result in a contraction moving forward.

Changes to records access laws like OPRA raise concerns among advocates of government transparency and accountability, who argue that decreasing access to public records may enable corruption and potentially erode the public’s trust in institutions. There is also concern that the recent OPRA changes establish a model other states might use to also restrict access to public information. Nonprofit advocacy groups, including the New Jersey Working Families Party and the American Civil Liberties Union, have been vocal in their opposition to the changes, fearing the new law would significantly reduce access to public records. They are also concerned that certain provisions in the bill may even penalize those who seek public records, as they allow government entities to sue requestors in cases where they believe OPRA requests have been abused. The new changes may also create challenges for investigators and researchers who rely on public records access to provide their professional services. However, the actual implications of these changes remain to be seen.

Upon signing the bill, Gov. Murphy stated that not only do the OPRA updates “better reflect today’s world” but also “codify a number of judicial decisions.” The new law creates new statutory protections for Personally Identifiable Information (PII)— personal information citizens provide to the government, including date of birth, home addresses, and information about minors. To that end, the new statute also incorporates Daniel’s Law, which prohibits the disclosure of residential addresses of certain “covered persons” including former, active, and retired judicial officers; prosecutors and members of law enforcement; and their immediate families. Covered persons could request that records containing PII be redacted prior to disclosure.Additionally, the OPRA changes limit access to certain categories of public information and create new procedural hurdles, potentially impeding access to public records. Organizations representing New Jersey municipalities and counties lobbied the state legislature to make these reforms, arguing that the OPRA changes “modernize the law to account for the technology and business practices that have emerged in the past 22 years.”

The new changes limit access to many kinds of information, including real estate transactions, police bodycam footage, government contracts, and court proceedings, among other categories. However, the new law does encourage public records to be digitized and placed on agency websites where feasible. If more information can be shared on agency websites, this could also reduce the need for many public records requests since individuals could look up the information directly on the agency website instead. However, at this time, it is unclear what documents will be digitized and made publicly available in New Jersey moving forward. The new law also increases the amount of time agencies and custodians have to process records requests. Significantly, in cases where the agency or custodian does not deliver the record in the time established, the records request would be deemed automatically denied. In such cases, the requestor would need to file a lengthy appeal to obtain access.

The OPRA changes also impact e-communication requests, as email, text messages, social media postings, and other communication requests must identify specific individuals or accounts to be searched and be confined to a discrete and limited time period. For example, instead of requesting “all emails between Politician A and Politician B,” one must also specify a start and end date for the emails. Requests that require additional research, collection of information from government records, or creation of new government records could also be denied. For example, if one requests a transcript of a community board meeting discussing a specific topic, and upon receipt of the transcript, it is revealed that this topic was tabled and then postponed to the next month’s meeting, a new and separate request would be required to obtain the following month’s transcript. Since fees are incurred for each record request, this may result in added costs for requestors. Interestingly, earlier versions of the bill outright banned record requests from commercial data brokers. However, the final version signed into law will continue to allow requests for commercial purposes as long as the data brokers certify the purpose of the request and a fee for such requests is imposed. Failure to provide a reason for the request may result in a hefty fine.

In conclusion, the OPRA changes introduce additional fees and procedural challenges and may result in a more lengthy and inefficient process for the end user. Individuals must ensure that requests are as specific as possible: a search that is too broad may lead to an automatic denial of the request. Investigators and researchers seeking public records must be aware of these changes to avoid unnecessary confusion and added costs for their clients.

That said, Withum’s Investigative and Corporate Intelligence Services Team will continue to be nimble and efficient in response to our clients’ requests.We do not anticipate that these changes will significantly impact Withum’s investigative capabilities, and we will continue to stay abreast of any new changes to the law in the coming months.

Author: Liz Farkas | [email protected]