OPRA Reform News

When it comes to the Clerk’s office, the following were noteworthy (The New Jersey League of Municipality also offered a summary)

Note: This is our understanding of the bills; consult your legal representative when in doubt.

Assembly # 5613

Link: https://pub.njleg.state.nj.us/Bills/2022/A6000/5613_I1.PDF

Limit Commercial Use

Limits using OPRA for commercial purposes as defined:

“Commercial purpose” means the direct or indirect use of any part of a government record for sale, resale, solicitation, rent or lease of a service, or any use by which the user expects a profit either through commission, salary, or fee. “Commercial purpose” shall not include using, distributing, gathering, procuring, transmitting, compiling, editing, disseminating, or publishing of information or data by the news media, or any parent, subsidiary, or affiliate of any news media or by any news, journalistic, educational, scientific, scholarly, or governmental organization.

And it would limit OPRAs for commercial purposes to two a month to any custodian, and if they try to work around this, they are to be reported to the GRC (Government Records Council) and can be prohibited from submitting any other requests for a period of one year.

Also, they can be fined, either by the courts or the council (assumingly the GRC and not the Municipal Council):

1. $500 for first offense
2. $1,000 for second offense
3. $1,500 for each subsequent offense

The Elimination of OPRA Machine?

One interesting thing you’ll find is that the bill makes it seem the Township can make a form the exclusive way to submit OPRAs – I wouldn’t say you can make this exclusively online (unfortunately):

Take note of section f:

The custodian of a public agency shall adopt a form for the use of any person who requests access to a government record held or controlled by the public agency.

Combined with this text:

A requestor shall be required to use the form adopted in accordance with subsection f. of this section to submit a request for access to a government record.

Clarity 9-12-2023

It doesn’t seem this will be the end of OPRA Machine, as you can still choose how to submit.

Lack of Anonymity?

It’s hard to say, based on the way the text is, if you can still be anonymous.

The requestor shall be required to complete the space on the form provided for the requestor’s name.

Requiring to put your name down appears to mainly be regarding limiting OPRA for commercial uses, but it doesn’t explicitly say that, so it is hard to say if requestors can remain anonymous.

Clarity 9-12-2023

Anonymity is not removed.

Assembly # 5614

Link: https://pub.njleg.state.nj.us/Bills/2022/A6000/5614_I1.PDF

Modifying The GRC (Government Records Council)

Pretty much this bill is solely focused on the GRC. It increases the number of members to 9, with seven public members. Also, it changes the denial appeal process, so requestors have to go to the GRC first before pursuing Superior Court. It would also give it more weight and have their opinions matter beyond being advisory.

It should also be noted one member in the expansion would be a municipal clerk.

Assembly # 5615

Link: https://pub.njleg.state.nj.us/Bills/2022/A6000/5615_I1.PDF

Stopping Someone’s Ability To File OPRAs?

It appears by court order (county level) for up to one year, there is the potential you can limit or even stop someone from submitting OPRA requests.

Here is the text worth noting:

The order may limit, or in appropriate circumstances eliminate, the public agency’s duty to respond to government records requests from the requestor in the future. The order may set timeframes for responding to future requests by the requestor. An order to limit the public agency’s duty to respond shall not exceed one year from the date of the court order.

Assembly # 5616

Link: https://pub.njleg.state.nj.us/Bills/2022/A6000/5616_I1.PDF

Daniel’s Law For All?

As many know, Daniel’s Law protects certain officials, like public employees part of the legal system, and their immediate family residing in their household, from having their information circulated. In regards to this bill, while it doesn’t go so far as to eliminate identifying who may own or live at a property, it does seem to strip the ability of the requestor to get a phone number, e-mail, or social media address (which would be strange for a government agency to have).

So, while this won’t stop attorneys from learning who has been in a car accident or has been ticketed and getting their address, it does mean when people ask for Tax information (whether from the assessor or collector), they won’t be able to get any significant contact information on file.

No Duplicate OPRAs

Quote From The Netflix Show The Chosen “There is no right answer if you ask the wrong question.”

Whether it is due to a denial, being unhappy a record wasn’t found, or a slew of other reasons, many will resubmit repeatedly. Now, as with most of the new proposed regulations, there is a carve-out for the media, educational, and government organizations. However, if not covered by that, it seems there could be a limit to similar or identical requests. Which, in combination with the commercial proposal, could mean those OPRA requests for the following week’s accident reports might end up rather limited (or they may have to ask for multiple weeks).

Permits a custodian to deny a request when a person submits a request for access to a government record that is identical to or substantially similar to another such request submitted by the requestor within the prior month, but not when the request is by the news media, or any parent, subsidiary, or affiliate of any news media, or by any news, journalistic, educational, scientific, scholarly, or governmental organization.

Special Service Charges

The thing many department records custodians want to have but is hard to justify, as we can request an extension, is mentioned via what can be done when someone fails to pay the charge or objects. It’s nothing special beyond noting they have 30 days to pay, or the request is considered withdrawn.

There is also mention of having a special service charge, for up to a period of five years, for:

[…] the labor cost of personnel when government records have been placed into storage by the public agency with a third party or at a location that is not property owned by the public agency and the custodian needs to retrieve the record from the third party or location.

Available Electronically vs. Sending By E-Mail

While DropBox, Google Drive, OneDrive, and many other options exist to get around most e-mail application limits for sending attachments, it is mentioned that if a requestor wants something by e-mail and it would require too much time and effort to manipulate it so it can be sent, you can notify the requestor of a location where there is a public access computer to review the file, without charge.

But why would you do that and not just share a link to this grandiose file? It is beyond our comprehension.

Communications from Concerned Residents

Among many things expected to now be put onto the website, such as minutes, agendas, budgets, employee salaries, employment contracts, collective bargaining agreements, resolutions, and ordinances, what is being included is communications from concerned residents. It isn’t clear who would be responsible, if they can be edited, what can be omitted, so this is something to look out for.

Etc.,

Beyond what is mentioned above, there is a reinforcement that Records Custodians don’t have to research or create new records, the exemptions of what records can be released, and what many who are already Clerks know from your original classes (and hopefully from getting your CEUs)