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 act, adopted in 2002, encourages transparency in government by providing, upon request, public access to records maintained by government agencies.
Anyone can file an OPRA request for records with a public agency. The first step is to determine which government agency may maintain the records the requester is seeking. Requests may be made to legislative or executive agencies, or municipalities or other subdivisions of state government. The request must be made to the custodian of records for that agency, which is a specific person designated by the agency to respond to OPRA requests.
Requests must be made to the records custodian in writing and must mention OPRA. Most agencies have a form available on their websites with instructions on how to submit the request. On those forms, the requester can indicate their preference for how they receive the records. The forms will also list any fees associated with receiving the records. The standard fee is 5 cents per standard size page and 7 cents per legal size page, although further charges may apply if there are special circumstances allowing for a service fee, or copies are provided in another format such as on a CD or flash drive.
While it’s not required to use the agency’s OPRA request form, it is recommended to avoid delays in processing the request and to ensure all the required information is submitted.
Request must be specific
The request must be clear about which records are being requested and cannot be overbroad. For example, a request for all documents and communications related to a general topic may be considered overbroad, but it can be more narrowly tailored by specifying a time frame, communications between certain individuals, and/or a more specific topic.
Once a request is received, the custodian has seven business days to respond, beginning the first day after the request is received. The response time for records directly related to an agency’s response to the COVID pandemic are more relaxed.
The custodian’s response can be any of the following:
- Granting access to the records
- Denying access, with reasons given.
- Asking for clarification of the request.
- Notifying the requestor of additional service fees, which must be disclosed to the requester prior to being charged.
- Stating that the custodian needs more time to respond to the request.
- If no response is received, that is considered a denial.
Exceptions to OPRA
The act contains 27 specifically listed exceptions when an agency does not have to provide records in response to an OPRA request, and there are a handful of additional exemptions carved out by executive order.
Many of the records that are not permitted to be disclosed under OPRA are for privacy and safety reasons. For example, except for very limited information, personnel and pension records are not subject to OPRA. As another example, emergency, security, or surveillance information that would jeopardize the security of a building, the people in the building, or a computer system would not be accessible. Personal tax returns are also not permitted to be disclosed.
Agencies also do not have to create records that do not exist, nor do they have to seek out records that are not already in their possession, in order to respond to OPRA requests.
An agency must give their reasons for denying a request. If an agency provides redacted records, they must state their reasons for redaction. Denials can be challenged in either Superior Court or before the Government Records Council.
Other types of document requests
OPRA requests are not the only method for obtaining public documents. There is also a common law right of access to certain documents. In the description of an OPRA request, the requester can also assert that they are seeking the documents under this right. Additionally, the judiciary has its own procedure for obtaining court records. Documents may be discoverable in ongoing litigation. Exclusive representatives, such as a local education association, are also able to request information related to negotiations and enforcing collective bargaining agreements under the PERC Act.
There are many strategic considerations to evaluate, such as when or who makes a request, and what legal right the request is made under, when making a request for records under OPRA or through another avenue. Local associations should be sure to consult their UniServ field representatives when making those decisions.
Kaitlyn Dunphy is an associate director of NJEA Legal Services and Member Rights in the NJEA Executive Office. She can be reached at kdunphy@njea.org.