Introduction:
On June 5, 2024, Governor Murphy signed an Open Public Records Act (“OPRA”) reform bill into law. The law is highly controversial, with critics arguing the new provisions will result in less government transparency. Supporters argue the changes were necessary to modernize the law and to assist public agencies in managing high volumes of requests.
Fee Shifting:
The new law reflects changes in several significant areas. One of the most controversial changes has been the change to the fee shifting provision. Previously, public agencies were required to pay the attorney’s fees of any person who successfully appealed the denial of an OPRA request. The new law provides that the Court or the Government Records Council may still award reasonable attorney’s fees to a prevailing party, but it is discretionary in most instances. Fee shifting is still mandatory if the public agency is found to have “unreasonably denied access, acted in bad faith, or knowingly and willfully violated [the provisions of OPRA].”
Personal Identifying Information:
The law also provides for increased protections for personal identifying information. The law defines personal identifying information as any information that may be used (alone or in conjunction with other information) to identify a specific individual. The law specifies that the following constitutes personal identifying information:
- Name;
- Social security number;
- Credit card number;
- Debit card number;
- Bank account information;
- Month and day of birth;
- Personal email address that is required for government applications, services, or programs;
- Personal telephone number;
- The street address portion of anyone’s primary or secondary home address; and
- Driver license number.
Characteristics of Requests
The law offers public agencies the ability to deny requests that are not sufficiently specific or reasonable, and affords public agencies the ability to seek a protective order and certain other relief when a requestor seeks records with “the intent to substantially interrupt the performance of government function[s].” The law also states that government records shall be made available online to the extent feasible.
Commercial Requestors
The law makes certain changes to what is required in relation to commercial requests. Requestors are required to certify whether the records will be used for commercial purposes. Public agencies shall respond to these requests within fourteen business days; however, if the requestor would like to receive a record within seven business days, the public agency may charge up to two times the cost of production of the record. If it is established that a commercial requestor intentionally failed to certify that a records request is for a commercial purpose, they will be subject to fines.
Conclusion:
The law goes into effect in early September. Public agencies that would like legal counsel to aid in compliance with the new law, or to answer questions related to it are invited to contact any member of the Labor & Employment group here at Brown & Connery, LLP via email, or phone at 856-854-8900. Please visit the Brown and Connery website at www.brownconnery.com to learn more about our legal services.
By: Arlette Leyba, Esquire and Taylor Johnson, Esquire
Associates at Brown & Connery, LLP