2013 Grc Opra Slide Deck

7/27/2019 2013 Grc Opra Slide Deck

1/21

8/12/201

The Open PublicRecords ActNew Jersey Government Records Council

Brandon D. Minde, Esq.Executive Director

What is OPRA?

A legal right to accessrecords.How did we get here?

SCOTUS

has repeatedly made clear that there is noconstitutional right to obtain all theinformation provided by FOIA or OPRAlaws.M>-Biirni-v v touny. 509 U.S. (2013)

"The Constitution itself is not a Freedom ofInformation Act."Hourhins v. KQEP, Inc.. 438 U S. 1, 14(1978]

"The Government could decide not to give out thisinformation at all."IA Po^m Pr-' v- Umtrd Kepnrong I'uHxhmg Corp.. 528 U.S. 32.411 (1999)


2/21

8/12/201

Founding-era English casesrequired a personal interest

One man has no right to look into another's titleeeds or rolls himself."Kiny.y sh.jlly. 3 T.K. 141, 142 (K.ll. 17H9)

19th-century American casesdo not support broad basedright to access public info

law, parties had no vested rights in the examinationof a record of title, or other public records, save by some interestin the land or subject of record."( ormncfc v Wolcott. 37 Kan. 391. 394 (1887)

By the 1960s:Constitutional and inherentrights of American citizens Sensitivity of some gov'tinfoIdea of governmentsubservience to theindividual

Private interests

Necessary for gov't info tobe available to the public Certain types of gov't infoshould remain secret

Freedom of Information ActCongress enacts in 1966 to deal with requests forgovernment records, consistent with belief that the peoplehave a right to know about them

BUT...Includes exemptions addressing issues of sensitivity andpersona] rights.

r 2002 - NJ enacts OPRATo give the public greater access to records maintained bypublic agencies in NJ by balancing:

ulic's interest in government records;?espect for personal privacy; and

3. The efficient process of government.


3/21

8/12/201

What OPRA is NOTSupposed to Be!1. A method of abuse2. A game of gotcha3. A way to waste government time and money

Challenging a Denial ofAccess under OPRA:Court or GRC

What is the GovernmentRecords Council?

Adjudicates denials of access (quasi-judicial). Court alternative. Mediation. Advisory Opinions. Prepares informational materials. Provides OPRA training. Operates an OPRA hotline.

GRC Complaint Process:o Step One: Denial of Access Complaint.o Step Two: Mediation (optional).o Step Three: Adjudication.o Step Four (if desired): Appeal to AppellateDivision of NJ Superior Court.o See GRC Regulations for details.

When calling the GRC with an OPRA question, beaware of the following:o Information provided by the GRC is not anofficial decision of the Council.o The GRC cannot tell a custodian how to respond.o Guidance, not legal advice.


4/21

8/12/201

Guidance v. Legal Adviceo Guidance: use as a reference library. Provideresources you need (OPRA provisions, prior case

law) so that you can make your own decision onwhether to grant or deny access. Tine GRCcannot make this decision for you.o Legal Advice: The GRC cannot tell custodians

exactly how to respond to a request. Get alawyer.

Sign up to receive free e-mail updates regardingOPRA, precedential cases, and new issues of TheOPRA Alert.

www.nj.gov/grc/news/news. Simply enter vour e-mail address online.

When is OPRA used?e requestor chooses to invoke the

Are there other ways torequest records?

o Common law requests.o Discovery requests.o Administrative/Informal requests (example:requestor comes to Clerk's counter andverbally asks to review minutes book).

lo can request recordsunder OPRA?Anyone!

What is an OPRARequest?


5/21

8/12/201

A request on official OPRA request form (eitheragency's form or GRC's Model Request Form).Written request (letter, fax, e-mail) that clearlyreferences OPRA.If written request does not mention OPRAanywhere, it is not an OPRA request.Verbal requests are never OPRA requests.

OPRA Request FormRequirements

Every public agency is required to adopt anofficial OPRA request form.GRC's Model Request Form is available todownload.owww.nj.gov/grc/custodians/request

Agencies may create their own request form, butbe careful not to include "misinformation."

Statutory FormRequirements

Include the name, address, and phone number ofthe requestor and brief description of thegovernment record sought;

Space for the custodian to respond which recordwill be made available, when the record will beavailable, and the fees to be charged;

Sped fie directions and procedures for requestinga record;

Statement as to whether prepayment of fees or adeposit is required;

___ ___

Time period within which the public agency isrequired to make the record available;

Statement of the requestor's right to challenge adecision by the public agency to deny access andthe procedure for filing an appeal; Space for the custodian to list reasons if a request

is denied in whole or in part; Space for the requestor to sign and date the form;and Space for the custodian to sign and date the formif the request is fulfilled or denied.____^_


6/21

8/12/201

OPRA Request Example:Official Form

i - J m m * :z.P t t MLogo

OPEII PUBLIC RECORDS ACT REQUEST FORM

C M.*- run rMttaef - .-.

I would ke a copy of tne City s open and closed session meeting minutes from January i.2012 to ine present dale Kindly send to my e-mail address at RcquniarijionKwinil com

OPRA Request Example:Valid Non-Form Request

i * s ^ s

v 12012AnitKin Munnipil Cl*rt An Ctv N* lm|SAtafac4mUt

Pla i**ccpllhiilacumiicaimr official fvqutil (or rtcordiuncI would cop( of 1 ' City'lOptn andt'OMd MlWcn ~ .*I -(

OPRA Request Example:Invalid Non-FormRequest

. . - \ j - - . = -

'0r*.Afi,Ct.N*~ltlDM'Otn.

icopvefth*CrtVii ianwjryl.Mliloth*" Piwtiff ^ iy|ittT*t-wo


7/21

8/12/201

How Does a RequestorSubmit an OPRARequest?

Hand delivered, mailed, transmittedelectronically, or otherwise conveyed to theappropriate custodian.Agencies may limit submission options based ontechnological capabilities.BUT...Cannot impose an unreasonable obstacle forrequestor!

Example 1: ABC Township does not accept faxedOPRA requests, but accepts all other methods.Example 2: XYZ agency only accepts handdelivered requests.

What if an employeeother than the custodianreceives the OPRArequest?

request torequestor to proper custodian; or2. Accept the request and forward it to propercustodian. N.T.S.A. 47:lA-5(h)

1What is a "governmentrecord" under OPRA?All records that are made, maintained, kepton file, or received in the course of officialbusiness.This means everything! Not just records thatare required to be maintained on file.


8/21

8/12/201

What governmentrecords can a requestoraccess under OPRA?

Almost everything.24 statutory exceptions of records accessible tothe public.Executive Orders and other laws may exemptrecords.Think: granting access is the RULE. Denyingaccess is the EXCEPTION.A custodian's default mindset should be thateverything can be disclosed.

Who is the officialrecords custodian?

Munidpality - the municipal clerk.o Sub departments may have own custodian ifmade known to the public. Any other public agency - the officer officially

designated by formal action of that agency'sdirector or governing body, as the case may be.Have a substitute.

What is a "publicagency" under OPRA?

Principal departments in Executive branch ofState government, or any agency within orcreated by such department.o Examples: NJ Department of CommunityAffairs and Attorney General's Office

Legislature of the State and any agency within orcreated by Legislative Branch.o Example: Office of Legislative Services.

---


9/21

8/12/201

Any independent State authority, commission,instrumentality or agency,o Example: State Ethics Commission Political subdivision of the State, or any entitycreated by a political subdivisiono Examples: munidpalities, League o

Munidpalities and school districts.

When is a response to anOPRA request due?

As soon as possible.Seven (7) business days after custodian's receiptof the request.Day 1 starts the day after the custodian receivesthe request.All responses must be in writing.

Are there exceptions tothe standard seven dayresponse time?

Yes! See N.I.S.A. 47:1 A-5(e).1. Immediate access shall ordinarily be granted to:

o Budgetso Billso Voucherso Contractso Government employee salary/overtimeinformation.

iate access means on the spot.

2. The following information shall be available tothe public within 24 hours or as soon aspracticable:o when crime reported but no arrest yet made,information as to the type of crime, time,location and type of weapon, if any;o if an arrest has been made, information as tothe name, address and age of any victims ...the safety of the victim and the victim's family,and the integrity of any ongoing investigationshall be considered in disclosing this

information;


10/21

8/12/201

o If an arrest has been made, information as tothe defendant's name, age, residence,occupation, marital status and similarbackground information and, the identity ofthe complaining party unless the release ofsuch information is contrary to existing law orCourt Rule;

ation as to the text of any charges suchthe complaint, accusation and indictmentsealed by the court or unless the releaseof such information is contrary to existing lawor court rule;

o Information as to the identity of the investigatingand arresting personnel and agency and thelength of the investigation;

o Information of the circumstances immediatelysurrounding the arrest, including, but notlimited to, the time and place of the arrest,resistance, if any, pursuit, possession and natureand use of weapons and ammunition by thesuspect and by the police; and

o Information as to circumstances surroundingbail, whether it was posted and the amountthereof.

What if the requestcannot be fulfilled withinthe required time frame?

Seek extension of time for legitimate reasons(examples: records in storage, mediumconversion, voluminous request).Extension "request" must be in writing, withinrequired response time (either standard orimmediate) and include an anticipated date onwhich records will be provided.Requestor does not need to approve.Failure to grant/deny access by extendeddeadline date results in deemed denial.

What if there is notenough information tofulfill the request?

Request must identify with reasonable clarity thespecific government records sought.

If request is overly broad or unclear, seekclarification or deny access to request.

Clarification request must be in writing withinrequired response time.

Response time stops until requestor responds.Time begins anew.

1


11/21

8/12/201

What is an overly broador unclear request?

Fails to identify with reasonable clarity thespecific government records sought.o Example: "any and all records related to theconstruction of the new high school."o Valid version: "any and all e-mails betweenJane Doe and John Smith regarding theconstruction of the new high school between

January 1,2012, and present."

A request that requires the custodian to conductresearch,o Example: "all meeting minutes from 2011 inwhich the Coundl discussed ABC Towing

Company."o Valid version: "all meeting minutes from2011."

"Outlier" Court CasesRegarding Overly BroadRequests

Burnett v. County of Gloucester (App. Div. 2010)- Request for "any and all settlements, releases orsimilar documents entered into, approved oraccepted from 1/1/2006 to present."Court held that not specifying the matters towhich the settlements pertained did not renderthe request invalid. It is the documentsthemselves that have been requested and theirretrieval requires a search, not research.

Burke v. Brandes, 429 N.I. Super. 169 (App. Div.2012). Request for correspondence between theGovernor's Office and Port Authority re: E-ZPassbenefits provided to Port Authority retirees.

Court noted request confined to spedfic subjectmatter with sufficient identifying information,namely, E-ZPass benefits provided to retirees.Court held that defendant "performed a searchand was able to locate records responsive ..."which "... belied any assertion that the requestwas lacking in spedficity or was overbroad."

1


12/21

8/12/201

1. Advisory, consultative or deliberative material(ACD) Draft documents: Parave Fogg v. Lower Allbways

Creek, GRC Complaint No. 2006-51 (August

jerative process: Roykovich v. West Milfordtoard of Education (Sussex), GRC Complaint No.2011-258 (April 2013).

GRC does not have authority over7:lA-7(g).

3. Medical examiner records: photos, negatives,prints, videotapes taken at scene of death or incourse of autopsy.

T riminal investigator}' recordsPursley v. Township of Hardyston PoliceDepartment (Sussex), GRC Complaint No. 2011-137 (January 2013).

5. Victims' records Paff v. Warren County Prosecutor's Office, GRC

Complaint No. 2007-167 (December 2008)(holding that Prosecutor's Office is not a victims'rights agency).

6. Trade secrets and proprietafinancial information. Albrecht v. NJ Department of Treasury, GRC

Complaint No. 2006-191 (July 2008).7. Attorney-client privilege

Wargacki v. County of Bergen, GRC ComplaintNo. 2011-198 (January 2013).

8. Administrative/technical info regardingnputer hardware, software and networks:h, if disclosed would jeopardize computersecurity.

Rogers v. Roxbury Board of Education (Morris),GRC Complaint No. 2008-229 (April 2009).


13/21

8/12/201

9. Emergency/security info or procedures forbuildings or facilities which, if disdosed, wouldjeopardize security of the building or facility orpersons therein.

Kohn v. Township of Livingston (Essex), GRCComplaint No. 2011-330 (February 2013).

10. Security measures/surveillance techniqueswhich, if disclosed, would create a risk to safelyof persons, property, electronic data or software. Rivera v. City of Passaic (Passaic), GRCComplaint No. 2011-214 (September 2012).11. Advantage to competitors Bond v. Borough of Washington (Warren), GRC

Complaint No. 2009-324 (June 2011).

12. Info generated by public employer/employeeregarding:o Sexual harassment complainto Grievanceo Collective negotiations

Lemongello v. City of Brigantine (Atlantic), GRCComplaint No. 2010-88 (February 2011).

13. Communications between public agency andinsurance carrier, administrative serviceorganization or risk management office.

Kvederas v. Town of Morristown (Morris), GRCComplaint No. 2009-70 (April 2010).

14. Information confidential pursuant to courtorder. Serrano v. South Brunswick Township, GRC

Complaint No. 2002-33 (January 2003) (holdingthat record is not protected by court order).

\15. Certificate of honorable dischargeRosenblum v. Borough of Closter, GRCComplaint No. 2005-16 (October 2005).

16. Personal identifying information:o Sodal security numbers. Herron v. NT

Department of Education, GRC Complaint No.2011-268 (December 2012).o Credit card numbers.o Unlisted telephone numbers. Smith v.Department of Corrections, GRC ComplaintNo. 2004-163 (June 2005).o Drivers' license numbers. Blue v. Wall

Township Police Department, GRC ComplaintNo. 2002-47 (August 2003).

1

1


14/21

8/12/201

17. Higher education records:o Academic research: Rosenbaum v. Rutgers University,GRC Complaint No. 2002-91 (January 2004).o Test questions, scoring keys, examination data,o Charitable contribution records,o Rare book collections/documents obtained by gift.o Admission applications. I.C. v. NI Department ofEducation, GRC Complaint No. 2008-91 (February2012).o Student records/disciplinary records: White v. WilliamPatterson University. GRC Complaint No. 2008-216August 2009).

20. Ongoing investigations. Winant v. Borough of Dumont (Bergen), GRC

Complaint No. 2011-31 (August 2012).21. Public defender records. Morgano v. NT Office of the Public Defender,

GRC Complaint No. 2008-79 (July 2008).

22. Exemptions contained in other state or federalatutes, regulations, Executive Orders, Rules ofirt, Constitution of this State, or judicial case Downing v. NT Department of Children & Family

Services, GRC Complaint No. 2010-295 (April2012).23. Personnel and pension records Vaughn v. City of Trenton (Mercer), GRC

Complaint No. 2009-177 (June 2010). There are exceptions to this rule!

24.Perino v. Borough of Haddon Heights, GRCComplaint No. 2004-128 (November 2004).

What if the requestedrecords are not in thecustodian's possession?

Obtain records resdepartments/personparties.o Example: Custodian is required to obtain

^quested attorney's bills which are maintainedspecial counsel's office, and not thelunicipality.

appropriatencludes third

Custodians should document attempts made toaccess records from other departments/personnel.Other employees impeding access to governmentbe found in violation of OPRA.

1


15/21

'8/12/201

How must a custodianrespond to an OPRArequest?

In writing! No verbal responses.Within required response time.By addressing each item requested, either:o Granting access;o Denying access;o Seeking clarification; oro Requesting an extension of time.

What is the cost to obtainrecords under OPRA?

OPRA's fee provision: N.T.S.A. 47:1 A-5(b):Fee prescribed by law or regulation (if anotherlaw sets specific fee for specific record),o Munidpal ordinances do not count!

If no other fee established by law or regulationexists:o $0.05 per page for letter sized printed pageso$0.07 per page for legal sized printed pages

Actual cost of printed pages, if agency can provecosts exceed $0.05/$0.07. Actual cost calculationcontained in November 2010 OPRA Alert onGRC's website.

Electronic records (sent via e-mail or fax) are freeof charge. CD, DVD, cassette, etc. - actual cost of material.

1


16/21

8/12/201

Labor fee for extraordinary/voluminous requests. Must be reasonable and based on actual direct cost

(hourly rate of lowest level employee capable offulfilling request, no fringe benefits). Cannot be established in advance by ordinance.Case by case determination.

GRC's 14 point analysis helps determine if fees arewarranted. Estimated in advance prior to being incurred.

Requestor must agree to pay.

1,000 pages of responsive records wicustodian 2 Vz hours to copy.Custodian may likely charge her direct hourlyfor the 2 Vi hours required to fulfill request.Custodian must estimate cost and notify requestorbefore fulfilling the request.

What if the requestsubstantially disrupts theoperations of theagency?

May deny access only after attempting to reach areasonable solution with requestor thataccommodates the interests of both requestor and\e agency.Accommodation varies based on circumstances of

3t.

Subjective determination based on the resources ofthe agency.Applies in extreme scenarios only.

o Example 1: Caggiano v. Borough of Stanhope,GRC Complaint No. 2006-220 - Requestorsubmitted a 7 page, 59 item request spanning?r 12 years of records.o Example 2: Vessio v. NI Department ofCommunity Affairs, Division of Fire Safety, GRCComplaint No. 2007-188 - Requestor submitted13 item request, which included all fire safetyviolations issued from 1986-2006 and all

complaints filed since 1997.


17/21

8/12/201

What if only portions ofa record are exempt frompublic access?

What if an entire page ofa document needs to beredacted?

How are electronicrecords redacted?Can a requestor ask forrecords in a specificmedium?

Is there a fee to convertrecords to a specificmedium?

Maybe. Actual costs apply.Example 1: Requestor wants a record sent via e-mail. Custodian must scan paper document toconvert to electronic format. Request takes theCustodian 5 minutes to complete. No chargesapply.Example 2: Requestor wants audio recording of ameeting on CD-ROM. Custodian copies recordingin house onto CD-ROM agency purchased for $0.50.Request takes Custodian 20 minutes to complete.Charge is $0.50.

1


18/21

8/12/201

Example 3: Requestor wants large tax maps on CD-ROM. Custodian does not have capability to scanlarge maps and must use third party vendor.Vendor charges the agency $5.00 for service. $5.00fee is passed onto requestor.

Special Note: Vendor fees are special service chargesand must be approved by requestor prior to beingincurred.How must a custodiansend records to a

requestor?

Must grant access to a government record by thespedfic method of delivery identified by therequestor.o Example: Requestor wants records sent via fax,custodian must send records via fax.Remember - all limitations on access shall beconstrued in favor of the public.

small agency setspecific times toreceive/fulfill OPRArequests?

Yes!1. Municipalities with a population of 5,000residents or less;2. Board of Education with total enrollment of 500

or fewer; or3. Public authority with less than $10 million inassets.

1


19/21

8/12/201

What times?o Not less than 6 regular business hours over notless than 3 business days per week, or the entity's

regularly scheduled business hours, whichever isless.

What does this really mean?o 2 hours a day for 3 days a week, minimum,unless the agency's regularly scheduled businesshours are less.

What about privacyconcerns?

OPRA's Legislative Findings state "a public agencyhas a responsibility and an obligation to safeguardfrom public access a citizen's personal informationwith which it has been entrusted when disclosurethereof would violate the citizen's reasonableexpectation of privacy."In Burnett v. County of Bergen, 198 NJ, 408 (2009),the court held that OPRA's legislative findings aremore than a preamble, and impose an obligation onagencies to protect against disclosure of perseinformation.

What does this mean?o The GRC has routinely upheld a custodian'sredaction of home addresses and home telephonenumbers due to privacy concerns.Each determination is made based on the spedficfacts of the complaint by balancing the requestor'sneed for the information against the agency's needto keep the information confidential.

What about thecommercial use ofgovernment records?

What if OPRA requestsbecome excessive orharassing?

19


20/21

8/12/20

What if the requestorasks for records thathave already beenprovided?

Unless the custodian has proof at the time of thenew OPRA request that the requestor is still inpossession of the same records, access must begranted again.In Bart v. City of Paterson Housing Authority, 403N.I. Super. 609 (App. Div. 2008), the court held thatthe complainant could not have been denied accessto a record if he had the record in his possession atthe time of the OPRA request.Important: The custodian had proof at the time ofthe request that the complainant was still inpossession of the requested record. This decision isnot universally applicable!

What is the knowing andwillful penalty?

A public offidal, officer, employee or custodian whoknowingly and willfully violates OPRA andunreasonably denies access under the totality of thecircumstances is assessed a monetary penalty.o $1,000 for initial violation;o $2,500 for second violation within 10 years ofinitial violation;o $5,000 for third violation within 10 years of initialviolation.Penalty is paid personally by individual found inviolation, not the public agency.

Extremely high standard for penalty.o Actions must have been much more thannegligent conduct;o Individual must have had some knowledge thathis actions were wrongful;o Actions must have had a positive element ofcohsdous wrongdoing;o Actions must have been forbidden with actual,not imputed, knowledge that the actions wereforbidden;o Actions must have been intentional anddeliberate, with knowledge of theirwrongfulness, and not merely negligent, heedlesso r u n i n t e n t i o n a l .

What are prevailingparty attorney's fees?


21/21

8/12/201

When a requestor "prevails" in OPRA litigation (incourt or with GRC) and is represented by legalcounsel, the defendant public agency must pay therequestor's attorney's fees.What does it mean to "prevail?"o The filing of the complaint brought about a

change (voluntary or otherwise) in the custodian'sconduct,o A factual causal nexus exists between therequestor's litigation and the relief ultimatelyachieved.

o The relief ultimately achieved had a basis in law.

Review

Who chooses when an OPRA request issubmitted?

Is OPRA the only way to request records? Can residents of other states request records

under OPRA? Do all OPRA requests have to be on an official

form? What is required of a non-form written request tobe considered a valid OPRA request?

Are verbal requests valid under OPRA?

Can a requestor submit an OPRA request by e-mail?

Can an employee who is not the recordscustodian refuse to accept an OPRA request?

What is a "government record" under OPRA? Are any records exempt from public access? Who is the custodian for a State agency?

When is a response to an OPRA request forcontracts due?What should a custodian do if she cannot fulfill anOPRA request within the required time frame?A custodian calls a requestor to say that therequested records are ready for pickup. Is this avalid response to the request?What is the cost to provide records on DVD?

2013 Grc Opra Slide Deck

Documents

Transcript of 2013 Grc Opra Slide Deck