By Kaitlyn Dunphy, Esq.
An OPRA request does not refer to the popular talk show host, but rather to the Open Public Records Act. The law, passed in 2002, promotes transparency in government by providing, upon request, public access to records kept by government agencies.
Anyone can file an OPRA application for registration with a government agency. The first step is to determine which government agency can keep the records the applicant is looking for. Requests can be directed to legislative or executive agencies, municipalities or other subdivisions of state government. The request should be made to that agency’s records custodian, who is a specific person designated by the agency to respond to requests from the OPRA.
Requests must be made in writing to the custodian of the archives and must mention OPRA. Most agencies have a form available on their websites with instructions on how to submit the application. On these forms, the applicant can indicate their preference for how they receive the documents. The forms will also indicate any costs associated with receiving the files. Standard charges are 5 cents per standard-size page and 7 cents per legal-size page, although additional charges may apply if special circumstances warrant a service charge, or if copies are provided in another format, such as on a CD or USB flash drive.
Although it is not mandatory to use the agency’s OPRA application form, it is recommended to avoid delays in processing the application and to ensure that all required information is submitted.
The request must be specific
The request must clearly indicate what documents are requested and cannot be too broad. For example, a request for all documents and communications related to a general subject may be considered too broad, but it may be more narrowly tailored by specifying a time limit, communications between certain people and/or a more specific subject.
Once the request has been received, the Custodian has seven working days to respond, starting on the first day following receipt of the request. The response time for cases directly related to an agency’s response to the COVID pandemic is more flexible.
The custodian’s response may be one of the following:
- Grant access to records
- Refusal of access, with justification.
- Ask for clarification on the request.
- Advise the applicant of any additional service charges, which must be disclosed to the applicant before being charged.
- Indicate that the custodian needs more time to respond to the request.
- If no response is received, this is considered a refusal.
Derogations from the OPRA
The law contains 27 specifically listed exceptions where an agency does not have to provide records in response to an OPRA request, and there are a handful of additional exemptions provided by executive order.
Many of the documents that are not permitted to be disclosed under the OPRA are for confidentiality and security reasons. For example, except for very limited information, personnel and pension records are not submitted to OPRA. As another example, emergency, security, or surveillance information that would compromise the security of a building, people in the building, or a computer system would not be accessible. Personal tax returns also cannot be disclosed.
Agencies also don’t have to create records that don’t exist, or search for records that aren’t already in their possession, in order to respond to OPRA requests.
An agency must give reasons for refusing a request. If an agency provides redacted records, it must state the reasons for its redaction. Refusals can be challenged in Superior Court or before the Government Records Council.
Other types of document requests
OPRA requests are not the only way to obtain public records. There is also a common law right of access to certain documents. In the description of an OPRA request, the requester can also state that he is requesting the documents under this right. In addition, the judiciary has its own procedure for obtaining court records. The documents can be discovered in ongoing litigation. Only representatives, such as a local education association, may also request information relating to the negotiations and enforcement of collective agreements under the PERC Act.
There are many strategic considerations to assess, such as when or who makes a request, and under what legal right the request is made, when requesting records under the OPRA or otherwise. Local associations should be sure to consult with their UniServ field representatives when making these decisions.
Kaitlyn Dunphy is Associate Director of NJEA Member Rights and Legal Services on the NJEA Executive Office. She can be contacted at [email protected]