FOREWORD

Open Records. On January 8, 2002, Acting Governor, Donald DiFrancesco, signed into Law a new Open Public Records Act ("OPRA").

The new statute makes significant improvements to the prior Right to Know Law:

 •  The law provides a succinct definition of "public record" which will assist custodians in providing access while at the same time excluding from the definition records not kept by a public officer in the course of his/her official business.

 •  The law provides a uniform system for requesting records and responding to requests as well as a time from within which the custodian must respond to the request — a significant omission in the prior Right to Know Law.

 •  The law preserves the existing court review of access disputes and provides a less expensive alternative administrative review, at the requester's option through the Government Records Council.

 •  The law provides for penalties for a knowing and willful violation of the law and allows for the recovery of reasonable attorney fees by a requester who prevails in a proceeding to gain access.

 •  The law preserves the common law right of access.

 •  The law provides for access to records stored or maintained electronically.

 •  The law preserves the confidentiality of investigative records by maintaining the current law as it applies to such records. In recognition of the need to protect investigations in progress and the law enforcement offices involved in those investigations, the Act does not broaden the existing right to access to such records but does broaden the right of access to non-investigatory records maintained by law enforcement agencies.

Open Meetings.

In 1975 the New Jersey Legislature enacted the Open Public Meeting Act, N.J.S.A. 10:4-6, et seq, commonly known as the "Sunshine Law." While some of the provisions of this Act had been included in prior legislation (See N.J.S.A. 10:4-1 to 5, repealed by L.1975, c.231), the Legislature saw the need for a stronger statute in order to prevent the public and the press from being "needlessly barr[ed] . . . from certain policymaking meetings of public bodies." Introductory Statement of Assembly No. 1030 — L.1975, c.231. The Sunshine Law was intended by the Legislature to establish comprehensive and uniform procedures at all levels of government to insure

that the public and the press have advance notice of and the opportunity to attend most meetings, including executive sessions, of all public bodies . . . .

Evidence of the strong public policies which underlie the Sunshine Law and which govern its application is expressed in the preamble to the legislation, which states:

The Legislature finds and declares that the right of the public to be present at all meetings of public bodies, and to witness in full detail all phases of the deliberation, policy formulation, and decision making of public bodies, is vital to the enhancement and proper functioning of the democratic process [and] that secrecy in public affairs undermines the faith of the public in government and the public's effectiveness in fulfilling its role in a democratic society . . . .

N.J.S.A. 10:4-7.

The extent to which the courts would go to fulfill and implement the public policies expressed by the Legislature was demonstrated in the 1977 decision in Polillo v. Deane, 74 N.J. 562, 379 A.2d 211 (1977), the first New Jersey Supreme Court case involving the Sunshine Law. In Polillo the issues before the Supreme Court were the extent to which the Atlantic City Charter Study Commission had violated the Sunshine Law and what remedies should be imposed for violation.

The charter study commission had been established by voter referendum to consider the merits of adopting a new form of government. In performing this function, the commission held meetings and hearings, some of which did not comply fully with the notice requirements of the Sunshine Law. The commission recommended that there be a voter referendum on adopting a "strong mayor" form of government. The referendum was thereafter placed on the ballot, and the voters of Atlantic City overwhelmingly adopted this new form of government.

Even though most of the commission's meetings had been well-publicized ahead of time and the hearings involved substantial public attendance and participation, the court found that there must be "strict adherence to the letter of law" with respect to the notice requirements of the Sunshine Law. Since strict adherence had not taken place, the court ruled that the vote of the commission to recommend a referendum must be invalidated, along with the voter referendum approving the new form of government. It ordered the commission to "embark again" on its task of considering a new form of government for Atlantic City.

The Supreme Court's decision in Polillo set the tone for all subsequent court decisions on interpretation and application of the Sunshine Law. And to a great extent the lower courts have required "strict adherence to the letter of the law" and have liberally construed the Sunshine Law to accomplish its purpose and the public policy of New Jersey. See N.J.S.A. 10:4-21.