New Jersey

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New Jersey passed a comprehensive new open records and meetings law on Jan. 8, 2002, which took effect on July 1, 2002.

Published analyses characterized New Jersey’s previous 38-year-old public-records law as among the weakest in the nation. Significantly, the law allowed public access only to those documents an agency was required to maintain and imposed no time limit on when an agency was required to respond to a request for documents. The new law assumes that records are open, unless covered by an exemption. The new law specifically addresses computerized records, but it also contains strong language in regards to protecting individual privacy.

The New Jersey Press Association withdrew its support from the bill in the final hour, however, after legislators added a provision exempting their own correspondence from disclosure.

The law. Open Public Records Act declares records to be public unless they fall within certain exceptions. (PL 2001, c. 404) In enacting the new law, the legislature concluded as a matter of public policy that "government records shall be readily accessible for inspection, copying or examination by citizens of this state, with certain exceptions, for the protection of the public interest." Mirroring the open-records laws in most other jurisdictions, the legislature mandated that "all records shall be subject to public access" unless specifically exempted.

"Government record" or "record" means any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. The terms shall not include interagency or intra-agency advisory, consultative, or deliberative material.

A custodian shall permit access to a government record and provide a copy thereof in the medium requested if the public agency maintains the record in that medium. If the public agency does not maintain the record in the medium requested, the custodian shall either convert the record to the medium requested or provide a copy in some other meaningful medium. If a request is for a record: (1) in a medium not routinely used by the agency; (2) not routinely developed or maintained by an agency; or (3) requiring a substantial amount of manipulation or programming of information technology, the agency may charge, in addition to the actual cost of duplication, a special charge that shall be reasonable and shall be based on the cost for any extensive use of information technology or for the labor cost of personnel providing the service.

The revised law imposes on public agencies "an obligation to safeguard from public access a citizen’s personal information with which it had been entrusted when disclosure thereof would violate the citizen’s reasonable expectation of privacy." N.J. Stat. Ann. § 47:1A-1 Thus, it exempts from disclosure certain documents relating to crime victims, sexual-harassment complaints filed against public employers, and "that portion of any document which discloses the Social Security number, credit-card number, unlisted telephone number or driver-license number of any person." The law also establishes a 13-member Privacy Study Commission that will study the law’s impact on privacy issues. N.J. Stat. Ann. § 47:1A-11 (a)

Cases & opinions. The new public records law created the Government Records Council to respond to questions regarding the law. The GRC had issued only a handful of opinions by March 2003, two of which addressed electronic records.

In response to a request for police blotter data to which a city charged a requester $150 for processing, the GRC concluded that a city did not present the council with any evidence that the one hour of labor and computer time to produce a copy of the police blotter or log for July 2, 2002 represents "a substantial amount of manipulation or programming of information technology" or the "extensive use of information technology …" pursuant to N.J. Stat. Ann. § 47:1A-5c, notwithstanding the age of the City’s computer system. The council ordered that custodian "shall charge the requester only the per-page copy rates in N.J. Stat. Ann. § 47:1A-5b for the record in question. The custodian shall refund to the requester any sum paid that exceeds the per-page copy cost for the record in question." GRC Complaint 2002-46 (Aug. 26, 2002)

In regards to a requester who sought e-mails sent or received by city officials, the custodian denied the request on the basis that the e-mails were "intra-agency advisory, consultative or deliberative materials" (ACD) and, thus, not "government records" accessible under OPRA. N.J.S.A. 47:1A-1.1. The custodian offered no evidence describing the general content of any e-mail for the council to assess the validity of the claim as to any particular e-mail communication. The township attorney advised the council that he would review the e-mail personally and provide the council with additional evidence in support of any ACD claim being made for each item. No further decision had been made on this issue. GRC Complaint 2002-58 (Jan.17, 2003).

Most other cases and opinions in New Jersey apply the previous statute or common law.

Where a commercial requester sought access to daily computer printouts, the law required a public utility to provide time for inspecting the printouts. If a computer record qualifies as a public record under the Right to Know Law, access may not be denied to any requester. Even when a computer printout does not qualify as a public record under the law, a requester may have a common law right of access if the interests in disclosure outweigh the need for confidentiality of the records. Techniscan v. Passaic Valley Water Common, 549 A.2d 1249 (N.J. 1988).

A newspaper had no right of access to a computer spreadsheet prepared for a government body because the law did not require the agency to make or keep the printout, a private consultant prepared it, and the reporter could reconstruct the analysis from public documents. Asbury Park Press v. State Dept. of Health, 558 A.2d 1363 (N.J. Super. Ct. App. Div. 1989), cert. denied, 569 A.2d 1344 (N.J.)

A private company that provides access to real estate tax assessment records is entitled to a computer tape of the assessments of each municipality under common law. Higg-A-Rella, Inc. v. County of Essex, No. A4830-92T3 (N.J. Super Ct. App. Div. Sept. 26, 1994). The court said that under the common law right of access to government documents, a requester could selectively copy files from a computer database where such copying had been done for others and where the requester was willing to pay the cost of creating and running necessary computer search programs. Board of Educ. Of Newark v. New Jersey Dept. of Treasury, A-67-95, 678 A.2d 660 (N.J. 1996).

Software. Two exemptions to the new law may impact reporters’ access to software or to documentation. "Administrative or technical information regarding computer hardware, software and networks which, if disclosed, would jeopardize computer security" and trade secrets and proprietary commercial or financial information obtained from any source. For the purposes of this paragraph, trade secrets shall include data processing software obtained by a public body under a licensing agreement that prohibits its disclosure, "as well as proprietary information as to computers."

Fees. With regard to the costs which may be charged for the copies, the statute sets the following maximum charges:
"A copy or copies of a government record may be purchased by any person upon payment of the fee prescribed by law or regulation, or if a fee is not prescribed by law or regulation, upon payment of the actual cost of duplicating the record. Except as otherwise provided by law or regulation, the fee assessed for the duplication of a government record embodied in the form of printed matter shall not exceed the following: first page to tenth page, $0.75 per page; eleventh page to twentieth page, $0.50 per page; all pages over twenty, $0.25 per page. The actual cost of duplicating the record shall be the cost of materials and supplies used to make a copy of the record, but shall not include the cost of labor or other overhead expenses associated with making the copy except as provided for in subsection c. of this section. If a public agency can demonstrate that its actual costs for duplication of a government record exceed the foregoing rates, the public agency shall be permitted to charge the actual cost of duplicating the record. C.47:1A-5 (b)

For computer records "the agency may charge, in addition to the actual cost of duplication, a special charge that shall be reasonable and shall be based on the cost for any extensive use of information technology, or for the labor cost of personnel providing the service, that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both."

Resources. Government Records Council