THE OPEN PUBLIC RECORDS ACT IN NEW JERSEY: AN OVERVIEW

By William N. Sosis, Esq.

New Jersey's Open Public Records Act (OPRA), codified at N.J.S.A. 47:1A-1 et seq., is a cornerstone of the state's commitment to government transparency and public participation. Together with the Open Public Meetings Act (OPMA), OPRA reflects a fundamental principle embedded in the Garden State's legal and political traditions: democracy requires an informed citizenry, and access to public information is essential for that knowledge.

This essay analyzes OPRA, covering its legal framework, interaction with other public access doctrines, practical application, and the broader philosophy of open government in New Jersey.

I. HISTORICAL AND PHILOSOPHICAL FOUNDATIONS OF OPRA

New Jersey courts have consistently emphasized the state's "tradition favoring the public's right to be informed about governmental actions." The New Jersey Supreme Court has referenced historical and constitutional principles—from James Madison to Justice William O. Douglas—to underline that secrecy breeds corruption and that openness is a democratic necessity.

In Polillo v. Deane (1977), the court stated, "A popular government without popular information…is but a prologue to a farce or a tragedy." Similarly, in South Jersey Publishing v. N.J. Expressway (1991), the court identified secrecy as a catalyst for public distrust and government corruption. These decisions affirm that OPRA is not merely a technical law but a legislative embodiment of the people's right to monitor and evaluate their government.

II. WHAT IS A "GOVERNMENT RECORD"?

Under OPRA, a "government record" encompasses "nearly everything made, maintained, or kept on file by a government official in the course of official business." This includes documents, emails, photographs, maps, and recordings. However, this broad definition is subject to numerous exceptions, such as:

- Privileged materials (e.g., attorney-client communications, work product)
- Criminal and noncriminal investigatory records
- Personnel files and private data
- Deliberative materials that are pre-decisional and advisory

These exemptions reflect the necessary balance between transparency and confidentiality, ensuring that disclosure does not impair individual privacy, public safety, or the government's decision-making process.

III. WHO IS COVERED AND HOW REQUESTS ARE MADE

OPRA applies to virtually all public agencies, including state departments, municipalities, counties, commissions, authorities, and boards—essentially every component of the executive and legislative branches, but not the judiciary.

Each agency must designate a custodian of records, typically the municipal clerk, responsible for responding to requests. While agencies may provide a form for submission, requestors are not required to use it; a written request—whether physical or digital—suffices.

IV. PROCEDURAL MECHANICS AND COMPLIANCE

Once a request is submitted, the custodian has seven business days to respond. Failure to do so constitutes a deemed denial. Immediate access is required for financial records like budgets and contracts. At the same time, custodians may extend the timeline for archived or voluminous records—provided they give prompt notice and a revised delivery estimate.

Importantly, OPRA mandates strict compliance. Even an honest, good-faith denial may result in the agency being held liable for the requestor's attorney's fees, reinforcing OPRA's status as a strict liability statute.

V. ENFORCEMENT AND REMEDIES

When access is denied, a requestor may file a summary action in Superior Court under R. 4:67 or lodge a complaint with the Government Records Council (GRC). A court challenge must be brought within 45 days, while no such deadline exists for GRC claims.

If a public agency is found to have willfully or knowingly violated OPRA, escalating civil penalties of $1,000, $2,500, and $5,000 may be imposed for successive offenses. These sanctions serve as a deterrent and disciplinary mechanism for persistent non-compliance.

VI. BALANCING ACCESS AND CONFIDENTIALITY

While OPRA heavily favors disclosure, the law recognizes key privileges and exemptions that safeguard sensitive information:

- Deliberative Process Privilege: Protects pre-decisional discussions and policy recommendations.
- Attorney-Client Privilege: Covers legal communications made in confidence.
- Personal Privacy: Prevents disclosures that infringe on a citizen's reasonable expectation of privacy.
- Ongoing Investigations: Excludes records that, if disclosed, would be "inimical to the public interest."

Each exemption must be construed narrowly, and the public agency must justify any denial with specificity and legal grounding.

VII. RELATIONSHIP TO THE COMMON LAW AND OTHER DOCTRINES

OPRA does not displace the common law right to access public records, reinforcing the need for transparency while respecting the complexities of governmental operations and individual privacy.

In conclusion, OPRA solidifies New Jersey's commitment to open government. It ensures that citizens can access information necessary to hold public officials accountable while also balancing the need for confidentiality in specific circumstances. Through its provisions and mechanisms, OPRA exemplifies a robust governance transparency framework.

QUESTIONS AND ANSWERS

This question-and-answer format provides practice pointers for requestors and custodians, as well as government attorneys and their clients. The purpose here is not to provide legal advice, which is necessarily fact-specific, but to offer quick guidance on matters arising from the actions of a public entity with respect to its records or its meetings. There is, of course, no substitute for informed legal advice from a qualified, licensed attorney.

Each answer also includes cross-references to the section or sections in this treatise where the issue is discussed in greater detail.

PUBLIC RECORDS

WHAT IS A "GOVERNMENT RECORD" UNDER THE OPEN PUBLIC RECORDS ACT?

Nearly everything made, maintained, or kept on file by a government official in the course of official business. See 4:4. But that broad definition is subject to numerous exceptions. See 5:1. There are exemptions from access for privileged material (see 6:1), investigatory records (see 7:1), personal data (see 9:3), and personnel records (see 11:1), as well as many others.

WHICH "PUBLIC AGENCIES" ARE SUBJECT TO OPRA?

In short, all of them except those that are part of the judicial branch of government. The term "public agency" is defined broadly to include all of the "principal" departments of the executive branch of State government, all political subdivisions of the State, and any commission, board, bureau, agency, or independent authority within any of those entities. See 3:2.

WHAT IS A "PUBLIC RECORD" UNDER THE COMMON LAW?

Anything produced by a public official in the course of performing public duties, whether written, digital, recorded, or preserved in some other format. See 17:1 and 17:2.

WHO IS RESPONSIBLE FOR RESPONDING TO A REQUEST FOR A GOVERNMENT RECORD?

The "custodian" appointed by the public agency. Every public agency must appoint a custodian. In the case of a municipality, the custodian is the municipal clerk. See 14:1.

IS THERE A REQUIRED FORM FOR REQUESTING A GOVERNMENT RECORD?

No, there is no State-mandated form. And while each public agency must adopt a form, use of the form is not required. See 13:5-2. But a request must be in writing. See 13:5-1.

HOW DOES THE REQUEST PROCESS WORK?

The person requesting a record must deliver the request to the appropriate custodian. See 13:4. The custodian must then comply "promptly" with the request, or if unable to do so, must indicate the specific basis for the noncompliance on the request and return it to the requestor. Any claim of an exemption from access must state the specific  exemption. See 14:2-2a. If the custodian believes that compliance with the request would disrupt agency operations, the custodian must attempt to reach a reasonable solution with the requestor. See 14:2-2c.

WHAT IS THE TIMELINE FOR COMPLIANCE?

The custodian must address most requests within seven business days after receiving the request; a failure to do so is deemed a denial. See 14:2-1.

CAN THE TIMELINE BE EXTENDED?

Yes, if a record is in storage or archived, or if some readily foreseeable difficulties or logistics will be required to comply with the request, then the custodian must advise the requestor promptly, but no later than within seven business days after receipt of the request. The custodian must also inform the requestor when to expect receipt of the record sought, and if any extraordinary expenses are anticipated. See 14:2-1 and 13:7-2.

ARE THERE SITUATIONS IN WHICH THE TIMELINE CANNOT BE EXTENDED?

Yes, the custodian must grant "immediate access" to financial records, including budgets, bills, vouchers, contracts, and salaries.

WHAT ARE THE CONSEQUENCES OF FAILING TO RESPOND TO A REQUEST FOR A GOVERNMENT RECORD?

Ordinarily, a failure to respond in a timely manner is deemed a denial. See 14:2-1a. And if the requestor ultimately demonstrates through litigation that the record was required to be produced, then the public agency will be responsible for the requestor's counsel fees. See 15:4.

WHAT ARE THE CONSEQUENCES FOR INCORRECTLY, BUT IN GOOD FAITH, DENYING A REQUEST TO ACCESS A GOVERNMENT RECORD?

The same as they are for any other denial: if the requestor ultimately prevails, the public agency will be responsible for counsel fees. See 15:4. In short, legal counsel must advise custodians and public officials that OPRA is akin to a strict liability statute.

WHAT NEW JERSEY COURT RULE PROVIDES THE PROCEDURE TO CHALLENGE A DENIAL?

A Superior Court challenge to a denial of access to a government record proceeds as a summary action under R. 4:67. See 15:2-2. The certifications of the parties in such a case are critical. Both parties should work to ensure that the court has sufficient information to permit the matter to be handled expeditiously.

IS THERE A TIME LIMITATION ON CHALLENGING A DENIAL OF ACCESS?

Yes, a Superior Court action alleging an improper denial of access to a government record must be asserted within 45 days after the denial. See 15:2-3. But there is no time limitation on a challenge asserted before the Government Records Council. See 15:3.

WHAT ARE INTER-AGENCY OR INTRA-AGENCY ADVISORY, CONSULTATIVE, OR DELIBERATIVE MATERIALS?

This exemption from access has long been understood to encompass the common law deliberative process privilege. See 6:2-1. To qualify for the exemption, the materials must be "pre-decisional" (that is, generated  before an agency's adoption of a particular policy), and must be "deliberative in nature," containing opinions, recommendations, or advice about public policy. See 6:2-2 and 6:2-3.

WHAT ARE THE BASIC GUIDELINES FOR THE RELEASE OF CRIMINAL INVESTIGATORY RECORDS?

Documents relating to a criminal investigation are best understood as accessible only to the extent of the original factual information available. See 7:3 and 8:2.

WHAT ARE THE CRITERIA FOR RELEASE OF RECORDS RELATING TO AN ACTIVE CRIMINAL INVESTIGATION?

To invoke the "ongoing investigations" exception to access, the State must show that disclosure would be "inimical to the public interest." See 7:2-4.

WHAT ARE THE BASIC GUIDELINES FOR THE RELEASE OF RECORDS RELATING TO A NONCRIMINAL INVESTIGATION?

Documents relating to a noncriminal investigation are best understood as weighted in favor of access. Nonetheless, access may be denied if the public agency can demonstrate that release of the record sought would be "inimical to the public interest" (e.g., the unwarranted invasion of a citizen's personal privacy, see below). See 7:2-4.

HOW BROAD IS A PUBLIC AGENCY'S OBLIGATION TO PROTECT A CITIZEN'S PERSONAL INFORMATION?

A public agency has a responsibility and an obligation to safeguard from public access a citizen's personal information entrusted to it when disclosure of the information would violate the citizen's reasonable expectation of privacy. See 9:3.

MAY ACCESS TO A GOVERNMENT RECORD BE DENIED BASED UPON ATTORNEY-CLIENT PRIVILEGE?

Yes, but it is important to remember that privileges are generally disfavored. The attorney-client privilege covers only communications made in confidence during the course of an attorney-client relationship. See 6:3. Therefore, a document or other communication will not necessarily be protected merely because it has been reviewed by or sent to an attorney.

HOW MUCH CAN A PUBLIC AGENCY CHARGE FOR RESPONDING TO AN ORDINARY REQUEST, OR AN EXTRAORDINARY REQUEST?

For ordinary requests, a public agency may charge copying costs of $0.05 per letter size and $0.07 per legal size page, unless it can demonstrate that its actual copying costs exceed those amounts. See 13:7-1.

For "extraordinary requests" (when the requested documents cannot be easily reproduced because of their nature, format, manner of collation, or volume), a special service charge may be assessed. But the requestor must be given the opportunity to review and object to the charge before it is incurred. See 13:7-2.

ARE THERE ANY PENALTIES FOR A WILLFUL OR KNOWING VIOLATION OF OPRA?

Yes, a public employee who willfully or knowingly violates OPRA is subject to a civil penalty of $1,000 for an initial violation, $2,500 for a second violation (within 10 years of the first), and $5,000 for a third violation (within 10 years of the first). See 15:5.

PUBLIC MEETINGS

WHAT IS A "PUBLIC BODY" FOR PURPOSES OF THE OPEN PUBLIC MEETINGS ACT?

A public body under OPMA is any group of two or more persons authorized to spend public funds or to perform a governmental function affecting the rights, duties, obligations, privileges, benefits, or other legal relations of any person. See 22:2.

WHAT QUALIFIES AS A "MEETING" SUBJECT TO THE REQUIREMENTS OF OPMA?

A"meeting" is any gathering (whether in person or by means of communication equipment) attended by, or open to, all of the members of a public body, held with the intent to discuss or act as a unit upon the specific public business of that body. See 23:2.

WHAT IS "PUBLIC BUSINESS"?

"Public business" includes anything within the scope of a public body's functions or authority. See 23:2.

WHAT SUFFICES AS "ADEQUATE NOTICE" OF A PUBLIC BODY'S MEETING?

The notice requirements under OPMA are substantively and procedurally routine, yet demanding and unforgiving. In general, a public body must give 48 hours advance written notice of a meeting; the notice must include the time, date, location, and, to the extent known, the agenda of any regular, special or rescheduled meeting, and it must state accurately whether "formal action" will be taken at the meeting. See 24:4-1. The notice must be (1) prominently posted in a public place reserved for such announcements, (2) provided to at least two publications designated by the public body, and (3) filed with the appropriate local or State official. See 24:4-2.

HOW ESSENTIAL IS ADVANCE PUBLIC NOTICE OF A PUBLIC BODY'S MEETING?

It is a sine qua non for the lawful conduct of business by the public body. See 24:1. Counsel to a public body should never permit a meeting to commence without first confirming on the record that all notice requirements for the meeting have been fulfilled.

WHAT ARE THE CONSEQUENCES OF A FAILURE TO PROVIDE ADEQUATE NOTICE OF A MEETING?

Failure to provide adequate advance notice can result in the invalidation of any action taken at the meeting. See 28:2. In many situations, such a sanction merely results in a "redo," see 28:2-4, yet at times the impact can be quite costly. Public agencies exist in a world of statutory and regulatory limitations, as well as monetary concerns. There are occasions when a  missed deadline can be fatal because a "redo" isn't feasible under a particular standard or timeframe.

CAN ONE ANNUAL PUBLIC NOTICE OF ALL REGULARLY SCHEDULED MEETINGS OF A PUBLIC AGENCY SUFFICE AS COMPLIANCE WITH OPMA?

Yes, if a public body publishes an annual schedule of its regular and special meetings, then no further notice is necessary for the meetings listed on the schedule. See 24:2.

WHAT ARE THE CIRCUMSTANCES IN WHICH A MORE DETAILED PUBLIC NOTICE IS REQUIRED?

Separate "adequate notice" is required for non-routine matters, such as the amendment of an ordinance, and for any meeting not listed on the annual schedule. See 24:4.

ARE THERE ANY CIRCUMSTANCES IN WHICH A MEETING OF A PUBLIC BODY MAY PROCEED WITHOUT ADVANCE ADEQUATE NOTICE?

Yes, but only in an emergency and upon the affirmative vote of three-fourths of the public body's members. An "emergency" under OPMA is a matter that could not reasonably have been foreseen by the public body, and in which any delay is likely to cause substantial harm to the public interest. The public body must give adequate notice of the "emergency" meeting as soon as possible afterward. See 24:7.

WHAT GROUPS OR MEETINGS ARE NOT CONSIDERED PUBLIC BODIES, AND IN WHAT SITUATIONS MAY PUBLIC OFFICIALS MEET WITHOUT ADVANCE ADEQUATE NOTICE?

Informal or advisory groups with no effective authority are not "public bodies." See 22:5-2. In addition, a public official's meeting with an advisor may not be viewed as a "meeting" subject to OPMA. See 22:5-2. Meetings between officials of separate agencies may also (in some circumstances) fall beyond the scope of OPMA. See 23:2.

WHAT ARE THE CIRCUMSTANCES IN WHICH A PUBLIC BODY MAY DISCUSS PUBLIC BUSINESS IN A "CLOSED," OR "EXECUTIVE" SESSION?

There are nine exceptions in OPMA permitting closed sessions of a public body, but only five arise with any frequency. They are: (1) matters that might result in unwarranted invasion of individual privacy; (2) collective bargaining agreements; (3) the purchase, lease, or acquisition of real property; (4) pending or anticipated litigation; and (5) matters involving the hiring or termination of public employees. See 26:1. The discussion during a closed session cannot stray beyond the matter or matters recited in the resolution adopted prior to proceeding to closed session. See 26:3.

WHAT MUST A PUBLIC BODY DO PRIOR TO GOING INTO CLOSED SESSION?

It must adopt a resolution clearly stating: (1) which of the nine OPMA exceptions creates the necessity for a closed session, and (2) when the minutes memorializing the matters discussed or actions approved during the closed session will be made available to the public. See 26:2.

WHAT ARE THE TYPES OF SITUATIONS IN WHICH DISCUSSION OF AN EMPLOYEE OR PRIVATE INDIVIDUAL MUST TAKE PLACE IN A CLOSED SESSION?

Examples include: (1) the potential for an unwarranted invasion of an employee's privacy; (2) the hiring, firing, or disciplining of an employee; (3) the negotiation of an employment contract; and (4) the imposition of a penalty for violation of a contract or statutory standard. See 26:3-3, 26:3-8b and 26:3-9.

WHAT IS A "RICE NOTICE" AND WHEN MUST ONE BE PROVIDED?

This notice must be provided by a public employer to any employee when that employee's job performance or terms of continued employment will be discussed by a public body in a planned closed session. A Rice Notice grants the employee the opportunity to exercise the right to request a public discussion of the matter, in lieu of a closed session. Any request for a public discussion must be in writing. See 26:3-8c.

WHAT ARE THE CONSEQUENCES OF FAILURE TO PROVIDE A RICE NOTICE?

If the employee challenges the action taken during the improper closed session, the action will likely be declared void. See 28:2. The employee's status will consequently remain unaltered until either a properly noticed meeting in closed session is convened, or the matter is considered at a properly noticed public meeting. See 26:3-8d and 28:2-4.

HOW HAVE THE COURTS DEFINED "PENDING OR ANTICIPATED LITIGATION" FOR PURPOSES OF THE "LEGAL MATTERS" CLOSED SESSION EXEMPTION?

For a public body to invoke the "pending or anticipated litigation" exception, the subject under discussion must be the pending or anticipated litigation itself, namely, the public body must be discussing its strategy in the litigation, the position it will take, the strengths and weaknesses of that position with respect to the litigation, and the terms and conditions of any possible settlement.

HOW HAVE THE COURTS DEFINED ATTORNEY-CLIENT PRIVILEGE, FOR PURPOSES OF A CLOSED SESSION DISCUSSION?

Attorney-client privilege is not a talisman to be used to block public access to the proceedings of a public body. There must be a bona fide need to address a subject on which the confidential advice of legal counsel is necessary. See 26:3-7b. The resolution adopted by the public body on the record in open session must express the subject matter proposed for discussion with legal counsel during the closed session, and cannot rely upon generalities or vague terms. See 26:2-2.

MUST A PUBLIC BODY KEEP MINUTES OF A CLOSED SESSION? WHAT ARE ACCEPTABLE MINUTES?

Yes, a public body must keep minutes of all of its meetings, including closed sessions. See 27:1. Those minutes must be "reasonably comprehensive," so that upon their ultimate release, the public will have a full understanding of what was discussed. See 27:2.

WHEN MUST THE MINUTES OF A CLOSED SESSION BE RELEASED TO THE PUBLIC?

When the matter is completed or finally concluded unless release of the minutes would subvert the purpose of the closed session exemption relied upon by the public body. See 27:3. If the minutes are to be released, the record keeper or custodian for the public body should present the minutes to the public body for formal approval at a duly noticed public meeting. See 27:4.

WHAT NEW JERSEY COURT RULE PROVIDES THE PROCEDURE BY WHICH TO RAISE A VIOLATION OF OPMA?

A claim of an OPMA violation must be brought as an action in lieu of prerogative writ under R. 4:69. See 28:2-2.

WHAT IS THE DEADLINE FOR ASSERTING AN OPMA CLAIM?

Acomplaint seeking invalidation of a public body's action because of an OPMA violation must be filed within 45 days after the action is made public. See 28:2-3. But there is no deadline for a complaint seeking only injunctive or other equitable relief. See 28:3.