Answers to FAQ on the Open Public Records Act
By Deborah M. Kole, Staff Attorney, NJLM
Q I have heard that the Attorney General has specifically exempted attorneys from the Open Public Records Act. Is this true, and if so, why are they given special treatment?
A The Attorney General has advised that attorneys acting in their advisory roles as attorneys to records custodians are not subject to discipline under the Open Public Records Act because the practice of law in New Jersey is regulated and its practitioners are disciplined exclusively by the state Supreme Court. However, if an individual is acting as a record custodian and violates OPRA, the fact that he or she is a New Jersey attorney will not insulate him or her from discipline under OPRA. It is the practice of law that is not subject to OPRA sanctions, because it is subject to other regulation instead. Individuals who happen to be attorneys are not given "special treatment" just because they are attorneys.
Q Is email sent by a municipal employee subject to the Open Public Records Act? If so, what about email sent from his or her home computer?
A Yes. Email sent by municipal employees is subject to the Open Public Records Act under the same conditions that regular mail or other written communications by these employees are covered by the Act. It is the subject matter of the email, rather than where it originated or where it is stored, that determines whether it is a “public record” under OPRA. If it discusses official municipal business and the subject matter is not protected by an exemption under the law, then it can be requested and must be released under OPRA.
Q Our municipality is being sued in state court over denial of a variance. Rather than use the Court Rules concerning discovery, the plaintiff is requesting records relating to the suit under the Open Public Records Act. Doesn’t he need to use the discovery rules to obtain material concerning litigation as parties have always done?
A No. Recent case law indicates that he may well be able to use the Open Public Records Act in this manner, to supplement the Rules of Discovery or even instead of the usual discovery process. In the case of Mid-Atlantic Recycling Technologies, Inc. v. City of Vineland, Law Div. (Stanger, A.J.S.C.), an unpublished opinion, the plaintiff sought documents under OPRA relating to its federal suit claiming the city selectively enforces environmental claims. The Court ordered the City to turn over the 12,000 pages of documents requested. Judge Stanger rejected Vineland’s claim that this use of OPRA was a circumvention of discovery rules.
In the related federal case in the District of New Jersey, Mid-Atlantic Recycling Technologies, Inc. v. City of Vineland, et al., U.S. District Court (Donio, U.S.M.J.), the Court denied the defendant’s request for a protective order to prevent plaintiff from obtaining the records in question under OPRA. The Court found that Rule 26 of the Federal Rules of Civil Procedure did not, as defendant claimed, override a litigant’s right to obtain documents under OPRA from a governmental entity that is a party to the litigation.
Therefore, municipalities should honor an otherwise valid OPRA request from an opposing party in litigation related to the subject matter of the litigation.
Q I am a municipal attorney, and I always send detailed bills to my clients so that they will know exactly what services I have performed to earn their payment. However, the bills for a municipal client were just requested under the Open Public Records Act, and I realize that some of the detail falls within the attorney-client privilege, and should not be released. What should I do?
A The privileged information can be redacted from the bills, but an explanation for its exemption from disclosure under the Open Public Records Act must be given. An unexplained claim of "attorney-client privilege" alone may not be enough. Of course, the challenge is to give a sufficient explanation to support the claim of privilege without revealing your client's privileged information.
This is a common problem, and many attorneys are switching to billing that contains no confidential information. After all, the bill detail is for the benefit of the client, and the client can always view the information in their file that is totally covered by attorney-client privilege to learn the confidential details of their legal representation. Put in the billing records only the information needed to justify the billing and maintain a separate file memoranda which can contain the privileged information.
Q Is the financial disclosure form that I file under the Local Public Ethics law as a municipal official subject to release under the Open Public Records Act? Doesn't the Governor's Executive Order 26 say that an individual's financial information is not a "government record" under OPRA?
A Executive Order 26, 4. (b) (3) does say that, for purposes of the Open Public Records Act, an individual's financial information is not a public record, "…except as otherwise required by law to be disclosed." The Local Public Ethics Law, N.J.S.A. 40A: 9-22.1 et seq., is just such a law requiring financial disclosure by municipal officials. The whole point of the filing of these statements is to require openness about financial information from public servants. Therefore, these Financial Disclosure Statements are considered government records and must be released to requesters under the Open Public Records Act.
Q I am a municipal clerk and a reporter for a regional newspaper recently called and asked for the salaries of all municipal employees. I would have no problem releasing this information to a resident of the community, but it doesn't seem right to allow this information to be published throughout the region, particularly since the newspaper also appears on the internet. Do I have to release this information?
A Yes, under the Open Public Records Act you must release this information. Similarly, employment contracts between municipal officials and the municipality, and professional invoices submitted to a municipal government are also accessible under OPRA (although certain confidential information may have to be redacted). When individuals become public officials or employees, some information concerning them becomes open to the public in a way it would not be if they worked in the private sector only. This has always been true to some extent, but more such information is open to public scrutiny now that OPRA is in place.
Q The governing body in my municipality recently held a meeting, and I requested a transcript of it under the Open Public Records Act. However, I was told that only a tape of the meeting exists at this point, and a written transcript will not be available for several weeks, which they tell me is how long it usually takes to transcribe the tape. Don't they have to provide this to me within seven business days of my request under the law?
A The Open Public Records Act requires records be provided in the medium requested, if the town keeps the record in that medium. If it does not, it must convert the records to the medium requested and then provide it. N.J.S.A. 47:1A-5(d). However, the town may charge you not only the costs of duplication but” a special charge that shall be reasonable and shall be based on the cost for any extensive use of information technology, or for the labor cost of personnel providing the service, that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both.”
N.J.S.A. 47:1A-5(i) states that a requested record must be provided within seven business days, unless the record is in storage or archived. No exception is made for a delay to due changing the medium. However, several cases have found that a delay is justified and no violation occurred when the request required an extraordinary expenditure of labor and costs and a response within the seven day period would have substantially disrupted operations. N.J. Builders Ass’n v. N.J. Council on Affordable Housing, 390 N.J. Super. 166 (App. Div. 2007).
Q I am the clerk for my municipality, and like most municipal clerks, I have handled many requests under the Open Public Records Act over the past couple of years. However, I have finally received an OPRA request that I do not know how to handle. A resident who had a variance application denied has asked me for all “similar variance denials” by the municipality. Even if I knew what denials he would consider “similar” to his, I would not know how to begin gathering this information. How should I handle this?
A According to rulings of the Government Records Council and the Appellate Division, this request is not an appropriate Open Public Records Act request. OPRA requests must be for specific, identifiable records, rather than information. The requester cannot require that the records custodian do research to find all records on a broad topic like the one you describe. In Reda v. Twp. of West Milford, GRC Complaint No. 2002-58 (January 17, 2003), an individual asked for information regarding a municipality’s liability settlements, but did not request specific records. The GRC rejected the request, noting that the custodian is only required to retrieve records, and the requester must do any research and analysis required.
The Appellate Division reversed the Law Division order requiring defendant to comply with an improper OPRA request in MAG Entertainment. LLC v. Division of Alcoholic Beverage Control, 375 NJ Super 534 (App. Div. 2005). The requester asked for all records concerning ABC suspensions of liquor licenses for serving liquor to an intoxicated person in connection with a fatal auto accident or concerning such suspensions for more than 45 days for “lewd or immoral activity.” In denying the request, the Court said “…OPRA does not countenance open-ended searches of an agency’s files…(T)he request failed to identify with any specificity or particularity the governmental records sought…”
Similarly, the request that was made to you is not an appropriate OPRA request. You should explain to the requester in your denial why you cannot comply with the request as given. If he can identify the records sufficiently so that you can retrieve them without extensive research and analysis, then you should, of course, do so.
Q Do requestors have to use the official OPRA form?
A Yes and no. In the case of Renna v. County of Union, 407 N.J.Super. 230,, (App. Div. 2009), the Court said: “We hold that all requests for OPRA records must be in writing; that such requests shall utilize the forms provided by the custodian of the records; however, no custodian shall withhold such records if the written request for such records, not presented on the official form, contains the requisite information prescribed in N.J.S.A. 47:1A-5(f).”
The Court stated that requests should be made on the form provided by the custodian of records, but that, so long as all the required information is present, failure to use the form cannot result in a refusal to withhold the records.
The Court went on to say: “In the event the submitted writing, exclusive of the form, is insufficient for the custodian to fulfill its statutory responsibility, such as the record may not be subject to OPRA or the request does not contain sufficient information, the custodian may require the requester to complete the official form.”
Q Our municipality recently settled a court case concerning an OPRA request by a resident. Much to our surprise, the court awarded substantial attorneys fees to the plaintiff. I thought only a party who won a case could get such an award. Can such fees be ordered in the context of a settlement?
A Yes. In 2006, the New Jersey Appellate Division ruled that a plaintiff who filed suit under the Open Public Records Act could qualify as a “prevailing party” for award of counsel fees under the Act even though the case had been settled. In Cynthia Teeters v. the Division of Youth and Family Services, 387 N.J. Super. 423 (App. Div. 2007) the Court supported its findings with case law demonstrating the State’s history of liberal construction of fee shifting provisions as well as its encouragement of the settlement process.
The Court emphasized that in this case a satisfactory settlement was reached only because of the plaintiff’s efforts in filing suit, and the plaintiff’s actions were thus the “catalyst” that allowed her to prevail in obtaining the records she sought. The Court said: “Petitioner engaged in reasonable efforts to pursue her access rights to the records in question. She sought attorney assistance only after her self-filed complaints and personal efforts were unavailing. With that assistance, she achieved a favorable result that reflected an alteration of position and behavior on the Division's part.”
The Court went on to point out that not awarding counsel fees in a settlement situation would put the plaintiff in a worse economic position than if she continued to litigate, and this result would not serve the state policy encouraging settlement of litigation. Furthermore, the history of OPRA indicated that a liberal application of its attorney fee provisions is appropriate. “It is also clear that the repeal of N.J.S.A. 47:1A-4, shortly after N.J.S.A. 47:1A-6 and -7 were adopted, was a renunciation of a narrower attorney's fees rule (i.e., embodying a prerequisite for a court order requiring disclosure, a limitation to $500, and a discretionary authority in the trial court) in favor of the broader, mandatory standard of entitlement based on the sole test of ‘prevail[ing] in any proceeding,’ and subject to a rule of reasonableness with no expressed monetary limitation.”
Q Our municipality is being sued under the Open Public Records Act (OPRA) because, the plaintiff alleges, we did not respond to his request for the introductory budget in both written and electronic format within the seven days allowed for response under the law. The written budget was given to him the day after it was requested, but the electronic copy was not corrected and ready for posting for two weeks, due to the illness of the municipal administrator, who handles the electronic posting. The requester immediately filed suit when the seven days had elapsed. Even though he now has what he asked for, he is claiming attorneys’ fees in this matter. He says there is a legal presumption in favor of awards of attorneys’ fees where the release of OPRA documents does not occur until suit is filed. Is he correct? Also, what is the statute of limitations for filing suit in these cases?
A The New Jersey Supreme Court has set a 45-day limit for such court actions, and has limited the presumption in favor of attorney’s fees in such cases to those situations where the agency denying the request does not respond at all to the requestor within the seven days provided under OPRA.
In the case of Mason v. Hoboken, 196 N.J. 51 (2008), the New Jersey Supreme Court affirmed the Appellate Division finding that the 45-day filing period of Rule 4:69-6(a), governing actions in lieu of prerogative writ, applies to OPRA suits filed in the Superior Court. Therefore, the Court affirmed the Appellate Division’s dismissal of those counts relating to denials of records requests that occurred more than 45 days prior to the filing of the complaint. The Court further found that a plaintiff suing in such an action over denial of an OPRA request who receives the documents during the suit is not necessarily a "prevailing party" entitled to recover attorneys' fees. Therefore, the Court affirmed denial of such fees concerning the counts of the complaint that were timely.
In this case, the plaintiff urged that a “rebuttable presumption” should exist in such a case that the plaintiff is a prevailing party entitled to such fees. The justices disagreed, instead supporting the “catalyst theory” in these matters, which allows attorneys fees in OPRA cases only if the requestor can prove facts establishing a “causal nexus” between the litigation and its receipt of the records. In the case before it, the court found no evidence of such a nexus. However, the Court said that a different standard would apply if an agency fails to respond at all to a request within the seven business days allowed under OPRA. In such cases, the burden shifts to the agency to prove that the suit was not the catalyst for its belated disclosure.