On July 12, 2022, we wrote about the Government Records Council’s proposed regulations. This week, on November 7, 2022, the proposed regulations became final.
The adopted regulations can be found here (after opening the webpage, click on 2022, then November, then November 7, 2022, then “Rule Adoptions,” then “Community Affairs – Government Records Council”). The official citation to the adopted rules in the New Jersey Register is 54 N.J.R. 2081(a).
The adopted regulations contain responses to five sets of comments, and the Government Records Council (“GRC”) made a few substantive changes in response to the comments. In response to comments made by this author, the GRC explicitly adopted the next-business-day rule set forth in N.J.A.C. 1:1-1.4 when calculating the statute of limitations. This means that for purposes of calculating when the statute of limitations expires, if the statute of limitations expires on a Saturday, Sunday or legal holiday, then the last day to file a complaint is the next business day. This change benefits requestors and may give them one or two extra days to file a GRC complaint, and also brings the calculation of the statute of limitations in line with the rule applied in the New Jersey Administrative Code and the New Jersey Court Rules.
In its responses to other comments made by this author, the GRC also attempted to clarify how the new sixty-day limitations would be applied, but in attempting to clarify, the GRC created additional confusion. In the first sentence of their clarification, the GRC states that “the 60-day statute of limitations will only apply to complaints filed after the effective adoption date of this rulemaking.” But, later in the same paragraph, the GRC states that “the rule will apply prospectively to records requests filed after November 7, 2022.” If the new limitations period only applies to requests filed after November 7, 2022 (as opposed to complaints filed after November 7, 2022), then the statute of limitations for requests filed prior to November 7, 2022 has not changed and, therefore, remains indefinite.
The adopted regulations state that a denial of access complaint must be filed “within 60-calendar days . . . after the requestor receives a response from the custodian that grants or denies access[.]” Thus, the regulation refers to “complaints,” but the response to comments refers “requests.” Through future comments, clarifications or decisions, the GRC will have to explain whether they intended the new limitations period to apply to “complaints” filed on or after November 7, or to “requests” filed on or after November 7.
The GRC also retained its proposal to essentially seal all records filed with the GRC prior to “an adjudication by the counsel.” Because the exception is set by regulation, we expect that records custodians will deny access to documents filed with the GRC on this basis. This lack of transparency is exacerbated by the fact that many GRC cases take months or years to be adjudicated, and some take several years to be adjudicated. A recent report prepared by the New Jersey Office of then Comptroller found that the GRC takes “21 months to resolve open public records act disputes.” Thus, under the GRC’s new rule, case files will be inaccessible under OPRA for an average of twenty-one months, and frequently much longer. It is no small irony that the agency in charge of fostering access to records would create a rule that reduces access instead.