After prior less attractive legislative attempts to implement radical changes to the New Jersey Open Public Records Act, the New Jersey Assembly now considers new legislation that provides significant clarifications for OPRA Custodians and makes significant changes to quell commercial and data mining requests from businesses and those with unscrupulous intentions. Although originally fast-tracked, the Assembly determined to slow down legislative initiative and provide amendments as last minute opposition arose to several key provisions in the law. Hopefully, this effort will not kill the bill which would be a welcome benefit to custodians and include critical updates to protect, among other things, an individual’s right to privacy.
The Senate successfully reported S2930 from committee. The Assembly Committee on State and Local Government approved the Assembly version, A4045, however, that bill now stands in the Appropriations Committee waiting further action.
As scam artists harvest personal data through sophisticated electronic means, this OPRA bill finally and significantly addresses electronic records. The bill permits the redaction of personal information or information that could reasonably lead to the disclosure of personal information, or when the public agency has reason to believe that disclosure of the requested information will lead to harassment, unwanted solicitations, identity theft or other opportunities for criminal acts. This change alone provides the custodian with additional tools to combat nefarious requests.
The bill, if adopted, would solve significant security related issues challenged in the courts. For example, the expansion of the security measures exemption now confirms that security alarm system activity, including the video footage for any public facility or grounds may not be released under OPRA unless the requestor can identify a specific incident that occurred, a specific date, and a limited time of the incident. This would eliminate wholesale video dumps which could provide the public with knowledge as to potential security loopholes in public buildings.
As Chair of Parker McCay’s Public Records Practice Group, our clients rely on us to provide critical advice as to OPRA’s unanswered questions. This guidance helps custodians perform their jobs. Answering an OPRA request incorrectly could lead to a challenge, often expensive, not just to defend, but also because of OPRA’s requirement for prevailing party attorney fees. Evaluating the request incorrectly can be expensive to the taxpayer and this pending OPRA bill helps eliminate some of the guess work.
The bill also helps combat identify theft by updating the definition and treatment of personal identifying information now including email addresses, home street addresses for primary and secondary homes and all telephone numbers. The modernization recognizes that Trenton enacted the original OPRA law before most people had email and cell phones. This amendment would consider these “new” technologies and protect personal privacy.
The pending law also confirms that a proper response includes direct references to electronic sources such as official government websites. This change encourages government agencies to place more information on their websites, increases transparency of the government process and makes it just a little easier for custodians to respond to an OPRA request.
Breaking from past case law, the bill will now require requestors to use the agency’s officially adopted OPRA request form. Individuals may still submit requests anonymously, however, the new law would prevent an anonymous requestor’s challenge of a denial in court or at the Government Records Council. These changes are likely two that the Assembly will reconsider as opponents believe these limit access to government records.
For commercial purpose, custodians can deny requests by data brokers and the requestor may not sell the data obtained through the records request. This would be a welcome change to OPRA as the original intent of the law was to shed light on the government’s legislative process, not to serve as a means for commercial enterprises to extract government data for profit making purposes.
The next few weeks appear critical to the success or failure of these needed changes. Parker McCay’s OPRA Practice Group stands ready to help clients implement these changes should Trenton amend OPRA. As always, the Firm stands ready to guide clients with their public records questions.
Parker McCay is a leading regional law firm with over 100 years of experience. Our Municipal and Government attorneys have extensive experience in OPRA matters, as well as municipal litigation, tort claims, COAH, affordable housing, employment law, redevelopment law, land use, and other governmental issues.
The content of this post is for informational purposes only and should not be construed as legal advice or legal opinion. You should consult a lawyer concerning your specific situation and any specific legal question you may have.