Access to Public Records and Public Meetings
The New Jersey Open Public Records Act (“OPRA”) grants any person the right to access public records in New Jersey. The New Jersey Open Public Meetings Act (“OPMA”) grants any person the right to access public meetings of any public agency in New Jersey. These laws created certain rights for the public and certain obligations for public agencies. Both laws are enforceable in Superior Court.
Before Filing an OPRA Request
Public agencies only have a responsibility to valid OPRA requests. For a request to be valid, it must (1) state that the records are being requested pursuant to OPRA; (2) be in writing and received by the agency (electronic submission is permitted); and (3) be specific enough so that the records custodians can search for and identify responsive records. It can sometimes be desirable to consult with an attorney experienced in handling OPRA matters to ensure that you are submitting a valid OPRA request.
What Happens If I’ve Been Denied Access to Records?
Any person who has been denied access to records in New Jersey may appeal that denial to the Superior Court of New Jersey or to an administrative agency called the Government Records Council (“GRC”). There are several important differences between Superior Court and GRC, and no one should choose one forum over the other without first consulting with an experienced OPRA litigator. Critically, for a requestor to utilize Superior Court, a denial of access complaint must be filed within 45 days after the date of the denial (called a statute of limitations). Unlike many other statutes of limitations, this deadline is very short, requiring both requestors and their attorneys to act quickly. (At this time, there is no similar filing deadline for the GRC).
Unlike most civil litigation, an OPRA lawsuit must be handled in a summary manner by the Court, and must me initiated pursuant to a set of specific court procedures. If these procedures are not followed, the case may get dismissed. Once filed, an OPRA plaintiff can expect the Court to set deadlines for the parties to file additional papers and a date for argument. Normally, this process takes four to eight weeks (depending on how busy the Court is), and a decision is usually made either immediately at or after the parties argue the case before the Court.
In addition to granting access to records, OPRA requires that requestors who prevail in Court or the GRC are entitled to payment of their reasonable costs and attorneys’ fees from the public agency that denied access to records. As a consequence, we are able to accept OPRA cases on contingency, which means that our clients do not owe us legal fees and expenses.
Each county has an assigned “OPRA judge” who has expertise in handling OPRA cases. Some OPRA judges have individualized case management practices. When deciding whether to challenge a denial of access, it is important to use an attorney who has experience in handling OPRA lawsuits across New Jersey.
Under the OPMA, meetings of New Jersey public agencies must be open to the public. In addition, they must provide advance notice of their schedule of meetings and must make minutes of all of their meetings available to the public (including closed or executive session meetings). Also, most (but not all) public agencies must dedicate a portion of the public meeting to public comment.
The requirements of the OPMA are not limited to in-person meetings. The OPMA broadly defines a public meeting as any gathering of a quorum of the governing body of a public agency, including any gathering by electronic means, where public business is discussed. This means that a quorum of the governing body of a public agency cannot use the telephone or emails to discuss public business that involves a quorum of the governing body. The OPMA applies to any discussions, even if no formal decisions are made.
Remedies for Violations
If a public agency violates the OPMA, a person may file a lawsuit in Superior Court for relief. (There is no agency equivalent to the GRC to enforce the OPMA). Like OPRA, OPMA lawsuits must be filed within 45 days after the violation, although that time period can be extended under certain circumstances (such as if the violation was hidden from the public). If a public agency is found to have violated the OPMA, then a court can issue several types of remedies. The court could issue an injunction barring the public agency from violating the OPMA in the future, or void actions taken by the governing body at an illegal meeting, or order the public agency to take certain actions in the future (such as providing meeting minutes of future meetings within a specific timeframe).