Assemblyman Danielsen has introduced A-5616, which makes various changes to the process for requesting access to government records.
Government Records Access
The legislation clearly outlines that a records custodian’s duty to respond to requests for access is limited to government records in the actual possession, custody, or control of the public agency.
Expansion of Exemptions and Redactions
The legislation expands the government records exempt from disclosure to include:
- Metadata or any extrapolation or compilation thereof.
- Information generated by or on behalf of a public agency but held solely by a third party which would disclose the proprietary information of that third party or would violate a written agreement with the third party that prohibits disclosure.
- The entirety of a record that contains, solely or predominantly, information obtained from or concerning an individual that relates to the individual’s personal identifying information, activities, or interactions with the public agency regarding the applications for and receipts of contracts, licenses, permits, and registrations.
However, such exemptions will not apply to personnel or pension records subject to disclosure pursuant to NJSA 47:1A-10 or any other information required to be disclosed by law, regulation, court order, or executive order.
In addition, the legislation implements the recommendations of the Privacy Study Commission to redact telephone numbers, email addresses, and social media addresses from government records.
Records on Public Agency Website
The legislation requires records custodians to make available at no charge as a PDF for inspection, examination, copying, and printing by posting on a searchable website maintained by or available to the records custodian of the following records:
- Employee salaries
- Employment contracts
- Collective bargaining agreements
- Communications from concerned residents
The records must be posted as soon as possible, but no later than 30 days after their creation; and they must remain on the website for five years. This new requirement will only apply to records created after the effective date of this bill.
If the government records are available on the public agency’s website, the records custodian must notify the requestor, within the time required, where on the website the record can be accessed remotely, provided the record can be found by any requestor through a search by title or content. After such notice to the requestor, the request is considered fulfilled, and no further action must be taken by the records custodian on that request. In addition, the records custodian will not be required to provide the government record to that requestor in any other format or medium.
The legislation also permits the records custodian to respond to a records request by email, if the public agency permits the submission of OPRA requests by email. The records custodian may respond by email and provide electronic access by notifying the requestor of the location of a public access computer that is available without charge within the municipality where the custodian is located.
The records custodian is permitted, at their discretion, to provide remote access to a government record when access by email has been requested and the government record is of such a scope and volume that it would require a substantial amount of manipulation, IT programming, or personnel time and effort.
Records Request Form
The legislation outlines items that must be included in an OPRA request if the official OPRA request form is not used to submit a records request. The requestor must clearly state on the request submitted that it is for access to a government record, their name (optional), requestor’s address and phone number, and a brief description of the government records sought under the OPRA request.
Denial of OPRA Request
The legislation requires a records custodian to deny a request if the custodian or any other public officer or employee is required to conduct research or review government records to identify, analyze, collate, or sort information contained therein and set forth the information in a new and separate written record to comply with the request for access. Denial is final and the requestor cannot submit a complaint to Government Records Council (GRC) based on the denial.
Multiple & Similar Requests
The legislation addresses the issue of multiple and similar requests.
If a person has submitted at least two other OPRA requests within the preceding five business days, the records custodian must grant access to the third and subsequent request or deny request for access no later than 20 business days after receiving the third and subsequent request(s).
A records custodian must deny an OPRA request if the requestor has submitted a request identical to, or substantially similar to, a request submitted by that requestor within the prior month. The legislation defines “substantially similar” as government records requested are identical but from different time periods. This provision does not apply when the use, distribution, gathering, procurement, transmission, compilation, editing, dissemination, or publishing of information or data in a government record is by the news media or by any news, journalistic, educational, scientific, scholarly, or governmental organization.
Additional Fees & Special Service Charges
The legislation adds a provision that when a requestor fails to pay or objects to a special service charge or actual costs for records production within 30 days of being notified of the costs, the request shall be deemed withdrawn. In addition, the legislation permits the public agency to charge for the actual cost of providing the records, along with a special service charge for government records stored off-site or by a third-party location (e.g., Iron Mountain). The special service charge is for reasonable labor cost of personnel providing the service, incurred by the agency or attributable to the agency for the clerical and supervisory assistance required, or both. The requestor can review and object to the charge before it is incurred. This provision of the legislation will only be applicable for five years.
The legislation provides that access to unaltered electronic communications must be provided. The records custodian must provide a written statement that the record is unaltered to the requestor. A document redacted under OPRA will not be deemed altered. The legislation also adds knowingly and willfully providing altered electronic communications as a violation of OPRA.
A-5616 would take effect on the first day of the fourth month following enactment.
There is no Senate companion at this time. A-5616 awaits consideration by the Assembly Oversight, Reform and Federal Relations Committee.
Contact: Lori Buckelew, Deputy Executive Director & Director of Government Affairs, firstname.lastname@example.org, 609-695-3481, x112.