New Jersey

Open Government Guide

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Author

Thomas J. Cafferty, Esq.
Nomi I. Lowy Esq.
Lauren James-Weir, Esq.

Charlotte Howells, Esq.
Gibbons P.C.
One Gateway Center
Newark, New Jersey 07102
(973) 596-4863

Last updated October 2021

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Foreword

Open Records.

On January 8, 2002, Acting Governor, Donald DiFrancesco, signed into Law a new Open Public Records Act, N.J.S.A. 47:1A-1, et seq. ("OPRA").

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

OPRA provides a succinct definition of "government record," which contains a series of specific exceptions thereto. OPRA also contains a number of exemptions from access as well.
OPRA provides a uniform system for requesting records and responding to requests, as well as a timeframe within which the custodian must respond to the request — a significant omission in the prior Right to Know Law.
OPRA preserves the existing court review of access disputes and provides a less expensive alternative administrative review, at the requestor's option, through the Government Records Council.
OPRA provides for penalties for a knowing and willful violation of the law and allows for the recovery of reasonable attorney’s fees by a requestor who prevails in a proceeding to gain access.
OPRA preserves the common law right of access.

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" (“OPMA”). While some of the provisions of OPMA had been included in prior legislation (see N.J.S.A. 10:4-1 to 5, repealed by L.1975, c.231), the Legislature saw the need for a stronger statute in order to prevent the public and the press from being "needlessly barr[ed] .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 policy making meetings of public bodies." Introductory Statement - Assembly No. 1030 — L.1975, c.231. OPMA was intended by the Legislature to establish comprehensive and uniform procedures at all levels of government to ensure that the public and the press have advance notice of, and the opportunity to attend, most meetings of public bodies.

OPMA expressly states that it “shall be liberally construed in order to accomplish its purpose and the public policy of this State…” N.J.S.A. 10:4-21.

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.

Under OPRA, the purpose for requesting the government records is irrelevant. See Williams v. Board of Education of Atlantic City Public Schools, 329 N.J. Super. 308 (App. Div. 2000), cert. denied, 165 N.J. 488 (2000). Under the common law, more than citizen status and good faith are necessary when there is a compelling governmental need for confidentiality. Loigman v. Kimmelman, 102 N.J. 98, 105-106 (1986).

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3. Use of records

When records are deemed accessible "government records," no restrictions on subsequent use of the information may be imposed.

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4. Can an individual request records on behalf of a third party or organization?

Yes, but only the requestor has standing the challenge a denial of access.

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B. Whose records are and are not subject to the Act

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1. Executive branch

In general, all government records are subject to access under OPRA, unless specifically exempted. Certain Executive Branch records have been exempted. The following records maintained by the office of the Governor, or part thereof, shall not be deemed to be government records under OPRA:

Any record made, maintained, kept on file or received by the Office of the Governor in the course of its official business which is subject to an executive privilege or grant of confidentiality established or recognized by the Constitution of this State, statute, court rules or judicial case law.
All portions of records, including electronic communications, that contain advisory, consultative or deliberative information or other records protected by a recognized privilege.
All portions of records containing information provided by an identifiable natural person outside the Office of the Governor which contains information that the sender is not required by law to transmit and which would constitute a clearly unwarranted invasion of personal privacy if disclosed.
If any of the foregoing records shall contain information not exempted by the provision of the Open Public Records Act or the preceding subparagraphs (a), (b) or (c) hereof then, in such event, that portion of the record so exempt shall be deleted or excised and access to the remainder of the record shall be promptly permitted.

(See Executive Order 26)

Records relating to petitions for executive clemency are not public records under OPRA. (See Executive Order No. 9)

N.J.S.A. 47:1A-1.1 provides that a government record shall not include the following information which is deemed to be confidential:

any copy of an oath of allegiance, oath of office or any affirmation taken upon assuming the duties of any public office, or that oath or affirmation, taken by a current or former officer or employee in any public office or position in this State or in any county or municipality of this State, including members of the Legislative Branch, Executive Branch, Judicial Branch, and all law enforcement entities, except that the full name, title, and oath date of that person contained therein shall not be deemed confidential.

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2. Legislative bodies

A government record shall not include information received by a member of the Legislature from a constituent or information obtained by a member of the legislature concerning a constituent, including but not limited to, information in written form or contained in any e-mail or computer database, or in any telephone record whatsoever, unless it is information the constituent is required by law to transmit.

See N.J.S.A. 47:1A-1.1.

A government record shall also not include any memorandum, correspondence, notes, report or other communication prepared by or for the specific use of a member of the Legislature in the course of the member's official duties, except that this provision shall not apply to an otherwise publicly accessible report that is required by law to be submitted to the Legislature or its members.

See N.J.S.A. 47:1A-1.1.

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3. Courts

OPRA does not address court records. However, New Jersey Court Rule 1:38-1 provides that “Court records and administrative records as defined by R. 1:38-2 and R. 1:38-4 respectively and within the custody and control of the judiciary are open for public inspection and copying” with certain specific exceptions, which are to be “narrowly construed in order to implement the policy of open access to records of the judiciary.”

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4. Nongovernmental bodies

OPRA applies to records of any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof. See N.J.S.A. 47:1A-1.1. Consequently, records of non-governmental bodies are generally not subject to the law.

There may be circumstances under which a governmental entity is not excused from its OPRA obligations simply because the requested records are not in its possession. See Burnett v. County of Gloucester, 415 N.J. Super 506, 517 (App. Div. 2010) (finding that “the settlement agreements at issue here [and in the possession of the County's insurance broker, one of the County's insurers, or outside counsel, but not in the possession of the County] were ‘made’ by or on behalf of the Board in the course of its official business. Were we to conclude otherwise, a governmental agency seeking to protect its records from scrutiny could simply delegate their creation to third parties or relinquish possession to such parties, thereby thwarting the policy of transparency that underlies OPRA. N.J.S.A. 47:1A-1.1.”).

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5. Multi-state or regional bodies

There are no published decisions on the applicability of OPRA to records of multistate bodies.

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6. Advisory boards and commissions, quasi-governmental entities

The records of any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards, are subject to OPRA. See N.J.S.A. 47:1A-1.1; see also Fair Share Housing Center, Inc. v. New Jersey State League of Municipalities, 207 N.J. 489, 504-05 (2011) (holding that the New Jersey State League of Municipalities is a “public agency” under OPRA because, among other things, it is controlled by elected officials from the municipalities it represents, a combination of political subdivisions created the League, and the League conducts educational programs for municipal officials and brings lawsuits that will benefit municipalities); Times of Trenton Pub. Corp. v. Lafayette Yard Community Development Corp., 183 N.J. 519, 535-36 (2005) (holding that the nonprofit corporation was created by a public subdivision and therefore it was a “public agency” within the meaning of OPRA).

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7. Others

4. Telephone call logs

The telephone numbers and names of persons called are not accessible. See Gannett New Jersey Partners, LP v. County of Middlesex, 379 N.J. Super. 205, 216 (App. Div. 2005); Livecchia v. Borough of Mount Arlington, 421 N.J. Super. 24, 29 (App. Div. 2011). However, the destination location of the calls made is accessible. Id.

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5. Electronic records (e.g., databases, metadata)

OPRA defines “government record” or “record” as:

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 inter-agency or intra-agency advisory, consultative, or deliberative material.

N.J.S.A. 47:1A-1.1 (emphasis added).

Paff v. Galloway Twp., 229 N.J. 340 (2017) involved a government record request for electronically stored information. Specifically, the request sought portions of electronic records, but not the entirety thereof. The Supreme Court of New Jersey held that such electronically stored information is itself a government record under the Open Public Records Act and remanded the case to the trial court. Id. at 353-54.

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a. Can the requester choose a format for receiving records?

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b. Can the requester obtain a customized search of computer databases to fit particular needs

Generally, yes, as long as the customized search appropriately identifies the information sought and the custodian does not have to make subjective judgments to determine the nature of the information covered by the request and is performing a search, not research. The definition of a government record includes “information stored or maintained electronically.” N.J.S.A. 47:1A-1.1. N.J.S.A. 47:1A-5(d) permits the imposition of a special service charge “if a request is for a record…(3) requiring a substantial amount of manipulation or programming of information technology.”

In Paff v. Galloway Township, 229 N.J. 340 (2017), the requestor sought specific fields of information (specifically, the sender, recipient, date and subject) in emails sent by the Township Clerk and Chief of Police over a two week period. The requestor did not seek the emails themselves, only these specific fields of information. The New Jersey Supreme Court found that these fields of information constituted government records under OPRA (subject to any applicable exemptions/redactions). The Court concluded that “[e]xtracting that kind of information requires ‘programming of information technology,’…a function the Legislature clearly envisioned the municipality performing, provided it has the means of doing so. Id. at 354.

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c. Does the existence of information in electronic format affect its openness?

No. The definition of a "government record" includes material stored or maintained electronically. (See N.J.S.A. 47:1A-1.1).

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d. Online dissemination

N.J.S.A. 47:1A-5(d) provides:

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, that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both.

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6. Email

See I(C)(5).

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7. Text messages and other electronic messages

See I(C)(5).

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See I(C)(5).

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9. Computer software

N.J.S.A. 47:1A-1.1 provides in pertinent part:

A government record shall not include the following information which is deemed to be confidential for the purposes of P.L. 1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented:

* * *

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 which prohibits its disclosure.

(Emphasis added.)

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10. Can a requester ask for the creation or compilation of a new record?

No. A wholesale request for a public agency to research, analyze, collate, and compile general information, rather than a proper request for specific documents, is improper under OPRA. MAG Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J. Super. 534, 543 (App. Div. 2005).

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D. Fee provisions

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1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

N.J.S.A. 47:1A-5(b) provides:

(1) A copy or copies of a government record may be purchased by any person upon payment of the fee prescribed by law or regulation. Except as otherwise provided by law or regulation and except as provided in paragraph (2) of this subsection, the fee assessed for the duplication of a government record embodied in the form of printed matter shall be $0.05 per letter size page or smaller, and $0.07 per legal size page or larger. 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. The actual cost of duplicating the record, upon which all copy fees are based, 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. Access to electronic records and non-printed materials shall be provided free of charge, but the public agency may charge for the actual costs of any needed supplies such as computer discs.

(2) No fee shall be charged to a victim of a crime for a copy or copies of a record to which the crime victim is entitled to access, as provided in section 1 of P.L.1995, c.23 (C.47:1A-1.1).

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2. Particular fee specifications or provisions

N.J.S.A. 47:1A-5(c) and (d) provide:

Whenever the nature, format, manner of collation, or volume of a government record embodied in the form of printed matter to be inspected, examined, or copied pursuant to this section is such that the record cannot be reproduced by ordinary document copying equipment in ordinary business size or involves an extraordinary expenditure of time and effort to accommodate the request, the public agency may charge, in addition to the actual cost of duplicating the record, a special service charge that shall be reasonable and shall be based upon the actual direct cost of providing the copy or copies; provided, however, that in the case of a municipality, rates for the duplication of particular records when the actual cost of copying exceeds the foregoing rates shall be established in advance by ordinance. The requestor shall have the opportunity to review and object to the charge prior to it being incurred.
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, that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both.

The custodian may require a deposit against costs for reproducing documents sought through an anonymous request whenever the custodian anticipates that the information thus requested will cost in excess of $5 to reproduce. N.J.S.A. 47:1A-5(f).

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3. Provisions for fee waivers

No fee shall be charged to a victim of a crime for a copy or copies of a record to which the crime victim is entitled to access, as provided in section 1 of P.L.1995, c. 23 (C.47:1A-1.1). N.J.S.A. 47:1A-5(b)(2).

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4. Requirements or prohibitions regarding advance payment

OPRA provides that the custodian may require a deposit against costs for reproducing documents sought through an anonymous request, whenever the custodian anticipates that the information requested will cost in excess of $5 to reproduce. See, N.J.S.A. 47:1A-5(f).

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5. Have agencies imposed prohibitive fees to discourage requesters?

Fees for copies have been set by statute. 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 be $0.05 per letter size page or smaller, and $0.07 per legal size page or larger. 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. The actual cost of duplicating the record, upon which all copy fees are based, 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. Access to electronic records and non-printed materials shall be provided free of charge, but the public agency may charge for the actual costs of any needed supplies such as computer discs.

(See N.J.S.A. 47:1A-5(b)). Under certain circumstances a special service charge may be imposed as follows:

c. Whenever the nature, format, manner of collation, or volume of a government record embodied in the form of printed matter to be inspected, examined, or copied pursuant to this section is such that the record cannot be reproduced by ordinary document copying equipment in ordinary business size or involves an extraordinary expenditure of time and effort to accommodate the request, the public agency may charge, in addition to the actual cost of duplicating the record, a special service charge that shall be reasonable and shall be based upon the actual direct cost of providing the copy or copies; provided, however, that in the case of a municipality, rates for the duplication of particular records when the actual cost of copying exceeds the foregoing rates shall be established in advance by ordinance. The requestor shall have the opportunity to review and object to the charge prior to it being incurred.

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6. Fees for electronic records

N.J.S.A. 47:1A-5(c) and (d) provide:

Whenever the nature, format, manner of collation, or volume of a government record embodied in the form of printed matter to be inspected, examined, or copied pursuant to this section is such that the record cannot be reproduced by ordinary document copying equipment in ordinary business size or involves an extraordinary expenditure of time and effort to accommodate the request, the public agency may charge, in addition to the actual cost of duplicating the record, a special service charge that shall be reasonable and shall be based upon the actual direct cost of providing the copy or copies; provided, however, that in the case of a municipality, rates for the duplication of particular records when the actual cost of copying exceeds the foregoing rates shall be established in advance by ordinance. The requestor shall have the opportunity to review and object to the charge prior to it being incurred.
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, that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both.

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E. Who enforces the Act?

A person who is denied access to a government record, at the option of the requestor, may institute a proceeding to challenge the custodian's decision by filing an action in Superior Court or file a complaint with the Government Records Council established pursuant to OPRA.

(See N.J.S.A. 47:1A-6)

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1. Attorney General's role

OPRA only allows requests for records, not requests for information. A wholesale request for a public agency to research, analyze, collate, and compile general information, rather than a proper request for specific documents, is improper under OPRA. MAG Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J. Super. 534, 543 (App. Div. 2005).

“If a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency.” N.J.S.A. 47:1A-5(g).

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II. Exemptions and other legal limitations

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A. Exemptions in the open records statute

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1. Character of exemptions

OPRA declares that all government records be subject to public access unless exempt from such access by: (i) OPRA, (ii) any other statute, (iii) resolution of either or both houses of the Legislature, (iv) regulation promulgated under the authority of any statute or Executive Order of the Governor; (v) Executive Order of the Governor; (vi) Rules of Court; (vii) any federal law; (viii) federal regulation; or (ix) federal order. See N.J.S.A. 47:1A-1.

N.J.S.A. 47:1A-1 also provides:

a public agency has a responsibility and an obligation to safeguard from public access a citizen’s personal information with which it has been entrusted when disclosure thereof would violate the citizen’s reasonable expectation of privacy; and nothing contained in P.L. 1963, c.73 (C.47:1A-1 et seq.), as amended and supplemented, shall be construed as affecting in any way the common law right of access to any record, including but not limited to criminal investigatory records of a law enforcement agency.

OPRA provides, in N.J.S.A. 47:1A-1.1:

A government record shall not include the following information which is deemed to be confidential for the purposes of P.L. 1963, c. 73 (C. 47:1A-1 et seq.) as amended and supplemented:

information received by a member of the Legislature from a constituent or information held by a member of the Legislature concerning a constituent, including but not limited to information in written form or contained in any e-mail or computer data base, or in any telephone record whatsoever, unless it is information the constituent is required by law to transmit;

any memorandum, correspondence, notes, report or other communication prepared by, or for, the specific use of a member of the Legislature in the course of the member’s official duties, except that this provision shall not apply to an otherwise publicly-accessible report which is required by law to be submitted to the Legislature or its members;

any copy, reproduction or facsimile of any photograph, negative or print, including instant photographs and videotapes of the body, or any portion of the body, of a deceased person, taken by or for the medical examiner at the scene of death or in the course of a post mortem examination or autopsy made by or caused to be made by the medical examiner except: when used in a criminal action or proceeding in this State which relates to the death of that person, for the use as a court of this State permits, by order after good cause has been shown and after written notification of the request for the court order has been served at least five days before the order is made upon the county prosecutor for the county in which the post mortem examination or autopsy occurred, for use in the field of forensic pathology or for use in medical or scientific education or research, or for use by any law enforcement agency in this State or any other state or federal law enforcement agency; for use by any law enforcement agency in this State or any other state or federal law enforcement agency;

criminal investigatory records;

the portion of any criminal record concerning a person’s detection, apprehension, arrest, detention, trial or disposition for unlawful manufacturing, distributing, or dispensing, or possessing or having under control with intent to manufacture, distribute, or dispense, marijuana or hashish in violation of paragraph (11) of subsection b. of N.J.S.2C:35-5, or a lesser amount of marijuana or hashish in violation of paragraph (12) of subsection b. of that section, or a violation of either of those paragraphs and a violation of subsection a. of section 1 of P.L.1987, c.101 (C.2C:35-7) or subsection a. of section 1 of P.L.1997, c.327 (C.2C:35-7.1) for distributing, dispensing, or possessing, or having under control with intent to distribute or dispense, on or within 1,000 feet of any school property, or on or within 500 feet of the real property comprising a public housing facility, public park, or public building, or for obtaining, possessing, using, being under the influence of, or failing to make lawful disposition of marijuana or hashish in violation of paragraph (3) or (4) of subsection a., or subsection b., or subsection c. of N.J.S.2C:35-10, or for a violation of any of those provisions and a violation of N.J.S.2C:36-2 for using or possessing with intent to use drug paraphernalia with that marijuana or hashish;

victims’ records, except that a victim of a crime shall have access to the victim’s own records;

any written request by a crime victim for a record to which the victim is entitled to access as provided in this section, including, but not limited to, any law enforcement agency report, domestic violence offense report, and temporary or permanent restraining order;

personal firearms records, except for use by any person authorized by law to have access to these records or for use by any government agency, including any court or law enforcement agency, for purposes of the administration of justice;

personal identifying information received by the Division of Fish and Wildlife in the Department of Environmental Protection in connection with the issuance of any license authorizing hunting with a firearm. For the purposes of this paragraph, personal identifying information shall include, but not be limited to, identity, name, address, social security number, telephone number, fax number, driver’s license number, email address, or social media address of any applicant or licensee;

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 which prohibits its disclosure;

any record within the attorney-client privilege. This paragraph shall not be construed as exempting from access attorney or consultant bills or invoices except that such bills or invoices may be redacted to remove any information protected by the attorney-client privilege;

administrative or technical information regarding computer hardware, software and networks which, if disclosed, would jeopardize computer security;

emergency or security information or procedures for any buildings or facility which, if disclosed, would jeopardize security of the building or facility or persons therein;

security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software;

information which, if disclosed, would give an advantage to competitors or bidders;

information generated by or on behalf of public employers or public employees in connection with any sexual harassment complaint filed with a public employer or with any grievance filed by or against an individual or in connection with collective negotiations, including documents and statements of strategy or negotiating position;

information which is a communication between a public agency and its insurance carrier, administrative service organization or risk management office;

information which is to be kept confidential pursuant to court order;

any copy of form DD-214, NGB-22, or that form, issued by the United States Government, or any other certificate of honorable discharge, or copy thereof, from active service or the reserves of a branch of the Armed Forces of the United States, or from service in the organized militia of the State, that has been filed by an individual with a public agency, except that a veteran or the veteran’s spouse or surviving spouse shall have access to the veteran’s own records;

any copy of an oath of allegiance, oath of office or any affirmation taken upon assuming the duties of any public office, or that oath or affirmation, taken by a current or former officer or employee in any public office or position in this State or in any county or municipality of this State, including members of the Legislative Branch, Executive Branch, Judicial Branch, and all law enforcement entities, except that the full name, title, and oath date of that person contained therein shall not be deemed confidential;

that portion of any document which discloses the social security number, credit card number, unlisted telephone number or driver license number of any person; except for use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf thereof, or any private person or entity seeking to enforce payment of court-ordered child support; except with respect to the disclosure of driver information by the New Jersey Motor Vehicle Commission as permitted by section 2 of P.L.1997, c.188 (C.39:2-3.4); and except that a social security number contained in a record required by law to be made, maintained or kept on file by a public agency shall be disclosed when access to the document or disclosure of that information is not otherwise prohibited by State or federal law, regulation or order or by State statute, resolution of either or both houses of the Legislature, Executive Order of the Governor, rule of court or regulation promulgated under the authority of any statute or executive order of the Governor;

Note: See L. 2020, c. 125 and 2021, c. 24 for amendments to this section and effective dates thereof.

a list of persons identifying themselves as being in need of special assistance in the event of an emergency maintained by a municipality for public safety purposes pursuant to section 1 of P.L.2017, c.266 (C.40:48-2.67); and

a list of persons identifying themselves as being in need of special assistance in the event of an emergency maintained by a county for public safety purposes pursuant to section 6 of P.L.2011, c.178 (C.App.A:9-43.13).

N.J.S.A. 47:1A-1.1 also provides:

A government record shall not include, with regard to any public institution of higher education, the following information which is deemed to be privileged and confidential: pedagogical, scholarly and/or academic research records and/or the specific details of any research project conducted under the auspices of a public higher education institution in New Jersey, including, but not limited to research, development information, testing procedures, or information regarding test participants, related to the development or testing of any pharmaceutical or pharmaceutical delivery system, except that a custodian may not deny inspection of a government record or part thereof that gives the name, title, expenditures, source and amounts of funding and date when the final project summary of any research will be available; test questions, scoring keys and other examination data pertaining to the administration of an examination for employment or academic examination; records of pursuit of charitable contributions or records containing the identity of a donor of a gift if the donor requires non-disclosure of the donor’s identity as a condition of making the gift provided that the donor has not received any benefits of or from the institution of higher education in connection with such gift other than a request for memorialization or dedication; valuable or rare collections of books and/or documents obtained by gift, grant, bequest or devise conditioned upon limited public access; information contained on individual admission applications; and information concerning student records or grievance or disciplinary proceedings against a student to the extent disclosure would reveal the identity of the student.

Other exemptions in OPRA are outlined below:

N.J.S.A. 47:1A-1.2 provides:

When federal law or regulation requires the submission of biotechnology trade secrets and related confidential information, a public agency shall not have access to this information except as allowed by federal law.

A public agency shall not make any biotechnology trade secrets and related confidential information it has access to under this act available to any other public agency, or to the general public, except as allowed pursuant to federal law.

N.J.S.A. 47:1A-1.3 provides:

Notwithstanding the provisions of any other statute or regulation to the contrary, government record as defined in section 1 of P.L.1995, c.23 (C.47:1A-1.1) shall include aggregate information regarding the total number of permits to purchase a handgun and firearms purchaser identification cards, without any personal identifying information, that have been issued by the Superintendent of State Police or the Chief of Police of a municipal police department.

N.J.S.A. 47:1A-2.2 provides:

Notwithstanding the provisions of P.L. 1963, c. 73 (C. 47:1A-1et seq.) or the provisions of any other law to the contrary, where it shall appear that a person who is convicted of any indictable offense under the laws of this State, any other state or the United States is seeking government records containing personal information pertaining to the person’s victim or the victim’s family, including but not limited to a victim’s home address, home telephone number, work or school address, work telephone number, social security account number, medical history or any other identifying information, the right of access provided for in P.L. 1963, c. 73 (C. 47:1A-1 et seq.) as amended and supplemented shall be denied.

A government record containing personal identifying information which is protected under the provisions of this section may be released only if the information is necessary to assist in the defense of the requestor. A determination that the information is necessary to assist in the requestor’s defense shall be made by the court upon motion by the requestor or his representative.

Notwithstanding the provisions of P.L. 1963, c. 73 (C. 47:1A-1et seq.) as amended and supplemented, or any other law to the contrary, a custodian shall not comply with an anonymous request for a government record which is protected under the provisions of this section.

N.J.S.A. 47:1A-3(a) provides, in part:

…where it shall appear that the record or records which are sought to be inspected, copied, or examined shall pertain to an investigation in progress by any public agency, the right of access provided for in P.L. 1963, c. 73 (C. 47:1A-1 et seq.) as amended and supplemented may be denied if the inspection, copying or examination of such record or records shall be inimical to the public interest; provided, however, that this provision shall not be construed to allow any public agency to prohibit access to a record of that agency that was open for public inspection, examination, or copying before the investigation commenced. Whenever a public agency, during the course of an investigation, obtains from another public agency a government record that was open for public inspection, examination or copying before the investigation commenced, the investigating agency shall provide the other agency with sufficient access to the record to allow the other agency to comply with requests made pursuant to P.L. 1963, c. 73 (C. 47:1A-1 et seq.).

N.J.S.A. 471A-3(b) provides, in part:

Notwithstanding any other provision of this subsection, where it shall appear that the information requested or to be examined will jeopardize the safety of any person or jeopardize any investigation in progress or may be otherwise inappropriate to release, such information may be withheld. This exception shall be narrowly construed to prevent disclosure of information that would be harmful to a bona fide law enforcement purpose or the public safety. Whenever a law enforcement official determines that it is necessary to withhold information, the official shall issue a brief statement explaining the decision.

N.J.S.A. 47:1A-5(a) provides that prior to allowing access to any government record, the custodian thereof shall redact from that record any information which discloses the social security number, credit card number, unlisted telephone number, or driver’s license number of any person, with certain exceptions.

Note: See L. 2020, c. 125 and 2021, c. 24 for amendments to this section and effective dates thereof.

N.J.S.A. 47:1A-5(g) provides, in part:

If a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency.

N.J.S.A. 47:1A-5(k) provides:

The files maintained by the Office of the Public Defender that relate to the handling of any case shall be considered confidential and shall not be open to inspection by any person unless authorized by law, court order, or the State Public Defender.

N.J.S.A. 47:1A-9 provides:

The provisions of this act, P.L. 2001, c. 404(C. 47:1A-5 et al.), shall not abrogate any exemption of a public record or government record from public access heretofore made pursuant to P.L. 1963, c. 73 (C. 47:1A-1 et seq.); any other statute; resolution of either or both Houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law; federal regulation; or federal order.

The provisions of this act, P.L. 2001, c. 404(C. 47:1A-5 et al.), shall not abrogate or erode any executive or legislative privilege or grant of confidentiality heretofore established or recognized by the Constitution of this State, statute, court rule or judicial case law, which privilege or grant of confidentiality may duly be claimed to restrict public access to a public record or government record.

N.J.S.A. 47:1A-10 provides:

Notwithstanding the provisions of P.L. 1963, c. 73 (C. 47:1A-1 et seq.) or any other law to the contrary, the personnel or pension records of any individual in the possession of a public agency, including but not limited to records relating to any grievance filed by or against an individual, shall not be considered a government record and shall not be made available for public access, except that:

- an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record;

- personnel or pension records of any individual shall be accessible when required to be disclosed by another law, when disclosure is essential to the performance of official duties of a person duly authorized by this State or the United States, or when authorized by an individual in interest; and

- data contained in information which disclose conformity with specific experiential, educational or medical qualifications required for government employment or for receipt of a public pension, but not including any detailed medical or psychological information, shall be a government record.

Relevant Executive Orders are outlined below:

(a) Executive Order No. 9 issued by Governor Richard J. Hughes

(b) Executive Order No. 48 issued by Governor Richard J. Hughes

(d) Executive Order No. 69 issued by Governor Christine Todd Whitman

(e) Executive Order No. 18 issued by Governor James McGreevey

(f) Executive Order No. 21 issued by Governor James McGreevey

(g) Executive Order No. 26 issued by Governor James McGreevey

(h) Executive Order No. 47 issued by Governor Chris Christie (note that Executive Order 47 provides in part “[a]ny provision of Executive Order No. 21 (2002) and Executive Order No. 26 (2002) that applies to any exemption initially proposed by an agency in the July 1, 2002 a New Jersey Register, is hereby rescinded.).

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2. Discussion of each exemption

See previous section.

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B. Other statutory exclusions

Additionally, N.J.S.A. 47:1A-9 provides:

The provisions of this act, P.L. 2001, c. 404 (C. 47:1A-5 et al.), shall not abrogate any exemption of a public record or government record from public access heretofore made pursuant to P.L. 1963, c. 73 (C. 47:1A-1 et seq.); any other statute; resolution of either or both Houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law; federal regulation; or federal order.
The provisions of this act, P.L. 2001, c. 404 (C. 47:1A-5 et al.), shall not abrogate or erode any executive or legislative privilege or grant of confidentiality heretofore established or recognized by the Constitution of this State, statute, court rule or judicial case law, which privilege or grant of confidentiality may duly be claimed to restrict public access to a public record or government record.

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

Some recent case law regarding exemptions is outlined below:

Gilleran v. Township of Bloomfield, 227 N.J. 159 (2016)

The Supreme Court of New Jersey determined that security camera footage of municipal parking lot was exempt from access under OPRA due to the two security exemptions in OPRA.

North Jersey Media Group, Inc. v. Township of Lyndhurst et al., 229 N.J. 541 (2017)

This case dealt with access to the names of the officers involved in a fatal shooting and copies of the Use of Force Reports (UFRs), dash-cam videos, activity logs, various investigative reports, and other related items. The Supreme Court of New Jersey held, in relevant part, that because UFRs are required by an Attorney General Directive to be made, maintained, or kept on file, they fall outside of the “criminal investigatory exemption” contained in OPRA.

Paff v. Galloway Township, 229 N.J. 340 (2017)

This case involved a government record request for electronically stored information. Specifically, the request sought portions of electronic records, but not the entirety thereof. The Supreme Court of New Jersey held that such electronically stored information is itself a government record under the Open Public Records Act and remanded the case to the trial court.

Libertarians for Transparent Government v. Cumberland County, 465 N.J. Super. 11 (App. Div. 2020)

The Appellate Division held that a settlement agreement between the county and a former county employee resolving a preliminary notice of disciplinary action against the employee was not a "government record" under OPRA because the settlement agreement resolved an internal disciplinary action, involving the employee's improper fraternization with female inmates, and, as such, was a "personnel record" exempt from disclosure under N.J.S.A. § 47:1A-10.

(Note: Case was heard by NJ Supreme Court on 9/14/21 – awaiting decision).

Gannett Satellite Info. Network, LLC v. Township of Neptune, 467 N.J. Super. 385 (App. Div. 2021)

This litigation involves a newspaper’s request, under both OPRA and the common law, for internal affairs records of a former Township of Neptune Sergeant. The trial court determined that the newspaper was not entitled to access under OPRA, but was entitled to the records, as well as counsel fees, under the common law. The Appellate Division affirmed the trial court’s ruling that the records were accessible under the common law but reversed the award of counsel fees, although the Court acknowledged that counsel fees are available under the common law. The Appellate Division also affirmed the trial court’s determination that the records were not accessible under OPRA.

(Note: Gannett filed a Petition for Certification to the New Jersey Supreme Court on the denial of fees under the common law and the denial of access under OPRA. It is currently awaiting a decision on same).

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D. Protective orders and government agreements to keep records confidential

Matter of New Jersey Firemen’s Association Obligation to Provide Relief Applications Under Open Public Records Act, 230 N.J. 258 (2017)

This case involved a government record request made to the New Jersey Firemen’s Association. The Association denied access to the requested records and filed a declaratory judgment action to obtain a judicial determination of its responsibilities under the Open Public Records Act. The Supreme Court of New Jersey held that once the Association denied access to the requested records, the Open Public Records Act authorized only the requestor to seek judicial review of that decision.

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E. Interaction between federal and state law

Additionally, N.J.S.A. 47:1A-9 provides:

The provisions of this act, P.L. 2001, c. 404 (C. 47:1A-5 et al.), shall not abrogate any exemption of a public record or government record from public access heretofore made pursuant to P.L. 1963, c. 73 (C. 47:1A-1 et seq.); any other statute; resolution of either or both Houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law; federal regulation; or federal order.
The provisions of this act, P.L. 2001, c. 404 (C. 47:1A-5 et al.), shall not abrogate or erode any executive or legislative privilege or grant of confidentiality heretofore established or recognized by the Constitution of this State, statute, court rule or judicial case law, which privilege or grant of confidentiality may duly be claimed to restrict public access to a public record or government record.

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1. HIPAA

See above.

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2. DPPA

See above.

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3. FERPA

See above.

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G. Collective bargaining records

All final collective bargaining contracts with public employees are public records. N.J.S.A. 34:13A-8.2. The records of a mediator or arbitrator in a public employee labor dispute may be kept confidential. N.J.S.A. 34:13A-16.

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H. Economic development records

There is no specific statute or case decision dealing with these records. If they meet the definition of “Government Record” in OPRA then they are accessible. To the extent they contain any trade secrets, proprietary commercial or financial information, that information can be redacted, pursuant to N.J.S.A. 47:1A-1.1, prior to the production of the records.

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I. Election Records

N.J.S.A. 19:31-3.2 provides:

A person who is (1)a victim of domestic violence who has obtained a permanent restraining order against a defendant pursuant to section 13 of the “Prevention of Domestic Violence Act of 1991,” P.L.1991, c. 261(C.2C:25-29) and fears further violent acts by the defendant, or (2) a victim of stalking, or member of the immediate family of such a victim as defined by paragraph (3) of subsection a. of section 1 of P.L.1992, c. 209 (C.2C:12-10), who is protected under the terms of a permanent restraining order issued pursuant to section 3 of P.L.1996, c. 39 (C.2C:12-10.1) and who fears death or bodily injury from the defendant against whom that order was issued, shall be allowed to register to vote without disclosing the person's street address. Such a person shall leave the space for a street address on the original permanent registration form blank and shall, instead, attach to the form a copy of the permanent restraining order and a note which indicates that the person fears future violent acts by the defendant and which contains a mailing address, post office box or other contact point where mail can be received by the person. Upon receipt of the person's voter registration form, the commissioner of registration in all counties having a superintendent of elections, and the county board of elections in all other counties, shall provide the person with a map of the municipality in which the person resides which shows the various voting districts. The person shall indicate to the commissioner or board, as appropriate, the voting district in which the person resides and shall be permitted to vote at the polling place for that district. If such a person thereafter changes residences, the person shall so inform the commissioner or board by completing a new permanent registration form in the manner described above.
Any person who makes public any information which has been provided by a victim of domestic violence, or by a victim of stalking or the family member of such a victim, pursuant to subsection a. of this section concerning the mailing address, post office box or other contact point of the victim or family member or the election district in which the victim or family member resides is guilty of a crime of the fourth degree.

Voter registration application - N.J.S.A. 19:31-6.4(d) provides that “the commissioner of registration shall furnish such registration forms upon request in person to any person or organization in such reasonable quantities as such person or organization shall request. The commissioner shall furnish no fewer than two such forms to any person upon request by mail or by telephone.”

Filing of registration forms - N.J.S.A. 19:31-10 provides:

The original and duplicate registration forms when filled out shall be filed alphabetically by districts at the office of the commissioner in separate sets of locked binders, one for the permanent office record and the other for use in the polling places on election days. Each set of the locked binders of original and duplicate registration forms shall consist of two volumes for each election district to be known as volume I and volume II. Volume I shall contain an index alphabetically arranged beginning with the letter “A” and ending with the letter “K”, and volume II shall contain a similar index beginning with the letter “L” and ending with the letter “Z”. In filing the forms there shall be inserted after the original and duplicate registration forms of each registrant a record of voting form with the corresponding serial number and the name and address of the registrant thereon. The binders containing the duplicate registration forms and the corresponding record of voting forms shall constitute and be known as the signature copy registers.

The original registration forms shall not be open to public inspection except during such period as the duplicate registration forms are in process of delivery to or from the district boards or in the possession of such district boards. The original registration forms shall not be removed from the office of the commissioner except upon the order of a court of competent jurisdiction. The signature copy registers shall at all times, except during the time as above provided and subject to reasonable rules and regulations be open to public inspection.

Copies of registry lists; distribution; prohibition of use for commercial or charitable solicitation; penalty - N.J.S.A 19:31-18.1 provides:

The county clerk in all counties shall cause copies of the registry lists, certified and transmitted under R.S.19:31-18, to be printed, and shall furnish to any voter applying for the same such copies, charging therefor $0.25 per copy of the list of voters of each election district. The clerkshall also furnish five printed copies thereof to each district board, which shall within two days post two such registry lists, one in the polling place and one in another conspicuous place within the election district. The county clerk shall also forthwith deliver to the superintendent of elections of the county, if any there be, and to the chairmen of the county committees of each of the several political parties in the county, five copies of the lists of voters of each election district in the county; and to the municipal clerk of each of the municipalities in the county five copies of the lists of voters of each election district in such municipality; and to the county board 10 copies of the lists of voters of each election district in each of such municipalities. The county clerk shall also, upon the request of the chairman of the State committee of any of the several political parties, but not more than once in each calendar year, forthwith deliver a copy of the lists of voters of each election district in each of the municipalities in his county. In no case shall a list of registered voters furnished pursuant to this section include voter signatures. The county clerk shall satisfy the request by delivery of a computer-generated or electronic copy of the list for the county from the Statewide voter registration system.
Thecommissioner of registration shall furnish a computer-generated or electronic copy of a list of registered voters in any or all election districts in the county to any voter requesting it, for which copy such commissioner shall make a charge which shall be uniform in any calendar year and which shall reflect only the cost of reproducing the list, but which in any case shall not exceed $375.
No person shall use voter registration lists or copies thereof prepared pursuant to this section as a basis for commercial or charitablesolicitation of the voters listed thereon. Any person making such use of such lists or copies thereof shall be a disorderly person, and shall be punished by a fine not exceeding $500.00.

Commission to check records - N.J.S.A. 19:31-23 provides:

Following each election the commissioner shall cause the record of voting as shown on the record of voting forms in the signature copy registers or, in counties in which polling records are used in place of those signature copy registers pursuant to section 2 of P.L.1994, c. 170 (C.19:31-3.3), as shown in the polling records, to be entered on the record of voting forms in the original registration binders and the Statewide voter registration system. An entry of any record of voting which shall have been made in the system shall be retained for a period of not less than ten years following the election at which the vote so recorded was cast.

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J. Emergency Medical Services records

HIPPA prevents disclosure of certain medical information. To the extent any information in these records is exempted from disclosure by HIPPA, it is likewise exempted from the definition of “government record” under OPRA.

See also N.J.S.A. 47:1A-1.1:

A government record shall not include the following information which is deemed to be confidential for the purposes of P.L.1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented:

…

when used in a criminal action or proceeding in this State which relates to the death of that person,

for the use as a court of this State permits, by order after good cause has been shown and after written notification of the request for the court order has been served at least five days before the order is made upon the county prosecutor for the county in which the post mortem examination or autopsy occurred,

for use in the field of forensic pathology or for use in medical or scientific education or research, or

for use by any law enforcement agency in this State or any other state or federal law enforcement agency.

With respect to accident reports, N.J.S.A. 39:4-131 (reports; forms; use as evidence; inspection; confidentiality) provides, in relevant part, that accident reports required to be forwarded by law enforcement officers and the information contained therein shall not be privileged or held confidential. Every citizen of this State shall have the right, during regular business hours and under supervision, to inspect and copy such reports and shall also have the right in person to purchase copies of the reports at the same fee established by section 6 of P.L.2001, c. 404 (C.47:1A-5). If copies of reports are requested other than in person, an additional fee of up to $5.00 may be added to cover the administrative costs of the report. Upon request, a police department shall send an accident report to a person through the mail or via fax as defined in section 2 of P.L.1976, c. 23 (C.19:59-2). The police department may require the person requesting the report to provide a completed request form and the appropriate fee prior to faxing or mailing the report. The police department shall provide the person requesting the report with the option of submitting the form and providing the appropriate fee either in person, through the mail, or via fax as defined in section 2 of P.L.1976, c. 23 (C.19:59-2).

The provisions of any other law or regulation to the contrary notwithstanding, reports obtained pursuant to this act shall not be subject to confidentiality requirements except as provided by section 28 of P.L.1960, c.52 (C.2A:84A-28).

When a motor vehicle accident results in the death or incapacitation of the driver or any passenger, the law enforcement officer responsible for notifying the next of kin that their relative is deceased or incapacitated, also shall inform the relative, in writing, how to obtain a copy of the accident report required by this section and the name, address, and telephone number of the person storing the motor vehicle pursuant to section 1 of P.L.1964, c.81 (C.39:10A-1).

Pursuant to N.J.S.A. 47:1A-1.1, victims’ records are not government records, except that a victim of a crime shall have access to the victim’s own records.

Regarding victims, N.J.S.A. 47:1A-1.1 contains the following definitions:

"Victim's record" means an individually-identifiable file or document held by a victims' rights agency which pertains directly to a victim of a crime except that a victim of a crime shall have access to the victim's own records.

"Victim of a crime" means a person who has suffered personal or psychological injury or death or incurs loss of or injury to personal or real property as a result of a crime, or if such a person is deceased or incapacitated, a member of that person's immediate family.

“Victims’ rights agency” means a public agency, or part thereof, the primary responsibility of which is providing services, including but not limited to food, shelter, or clothing, medical, psychiatric, psychological or legal services or referrals, information and referral services, counseling and support services, or financial services to victims of crimes, including victims of sexual assault, domestic violence, violent crime, child endangerment, child abuse or child neglect, and the Victims of Crime Compensation Board, established pursuant to P.L.1971, c. 317 (C.52:4B-1 et seq.) and continued as the Victims of Crime Compensation Office pursuant to P.L.2007, c. 95 (C.52:4B-3.2 et al.) and Reorganization Plan No. 001-2008.

Moreover, N.J.S.A. 47:1A-2.2 (access to public records by inmates; victim’s personal identifying information) provides that:

Notwithstanding the provisions of P.L.1963, c. 73 (C.47:1A-1 et seq.) or the provisions of any other law to the contrary, where it shall appear that a person who is convicted of any indictable offense under the laws of this State, any other state or the United States is seeking government records containing personal information pertaining to the person’s victim or the victim’s family, including but not limited to a victim’s home address, home telephone number, work or school address, work telephone number, social security account number, medical history or any other identifying information, the right of access provided for in P.L.1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented shall be denied.

A government record containing personal identifying information which is protected under the provisions of this section may be released only if the information is necessary to assist in the defense of the requestor. A determination that the information is necessary to assist in the requestor’s defense shall be made by the court upon motion by the requestor or his representative.
Notwithstanding the provisions of P.L.1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented, or any other law to the contrary, a custodian shall not comply with an anonymous request for a government record which is protected under the provisions of this section.

Information pertaining to victims - N.J.A.C. 10A:22-2.1 provides:

Pursuant to N.J.S.A. 47:1A-2.2 , a person convicted of any indictable offense under the laws of this State, any other state or the United States shall be denied access to a government record if the record contains personal information pertaining to the person's victim(s) or family member(s) of a victim(s).
An exception to (a) above may be made only if a court, upon motion by the requester or his or her representative, has determined that the information is necessary to assist in the defense of the requester. The inmate or representative thereof shall submit the determination by the court to the custodian of records for review and release authorization determination.

Additionally, N.J.S.A. 47:1A-1.1 exempts from access:

“emergency or security information or procedures for any buildings or facility which, if disclosed, would jeopardize security of the building or facility or persons therein;” and

“security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software.”

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K. Gun permits

N.J.A.C. 13:54-1.15 provides:

Any background investigation conducted by the chief of police, the Superintendent or the county prosecutor, of any applicant for a permit, firearms identification card license, or registration, in accordance with the requirements of this chapter, is not a public record and shall not be disclosed to any person not authorized by law or this chapter to have access to such investigation, including the applicant. Any application for a permit, firearms identification card, or license, and any document reflecting the issuance or denial of such permit, firearms identification card, or license, and any permit, firearms identification card, license, certification, certificate, form of register, or registration statement, maintained by any State or municipal governmental agency, is not a public record and shall not be disclosed to any person not authorized by law or this chapter to have access to such documentation, including the applicant, except on the request of persons acting in their governmental capacities for purposes of the administration of justice.

N.J.S.A. 47:1A-1.1 provides:

A government record shall not include the following information which is deemed to be confidential for the purposes of P.L.1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented:

…

“Personal firearms record” means any information contained in a background investigation conducted by the chief of police, the county prosecutor, or the Superintendent of State Police, of any applicant for a permit to purchase a handgun, firearms identification card license, or firearms registration; any application for a permit to purchase a handgun, firearms identification card license, or firearms registration; any document reflecting the issuance or denial of a permit to purchase a handgun, firearms identification card license, or firearms registration; and any permit to purchase a handgun, firearms identification card license, or any firearms license, certification, certificate, form of register, or registration statement. For the purposes of this paragraph, information contained in a background investigation shall include, but not be limited to, identity, name, address, social security number, phone number, fax number, driver's license number, email address, social media address of any applicant, licensee, registrant or permit holder.

See also N.J.S.A. 47:1A-1.3, which provides:

Notwithstanding the provisions of any other statute or regulation to the contrary, government record as defined in section 1 of P.L.1995, c. 23 (C.47:1A-1.1) shall include aggregate information regarding the total number of permits to purchase a handgun and firearms purchaser identification cards, without any personal identifying information, that have been issued by the Superintendent of State Police or the Chief of Police of a municipal police department.

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L. Homeland security and anti-terrorism measures

N.J.S.A. 47:1A-1.1 exempts from access:

emergency or security information or procedures for any buildings or facility which, if disclosed, would jeopardize security of the building or facility or persons therein;

security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software.

* * *

and

See also Gilleran v. Township of Bloomfield, 227 N.J. 159 (2016) the Supreme Court of New Jersey determined that security camera footage of municipal parking lot was exempt from access under OPRA due to the two security exemptions in OPRA.

Moreover, N.J.S.A. 47:1A-1.2 provides:

When federal law or regulation requires the submission of biotechnology trade secrets and related confidential information, a public agency shall not have access to this information except as allowed by federal law.
A public agency shall not make any biotechnology trade secrets and related confidential information it has access to under this act available to any other public agency, or to the general public, except as allowed pursuant to federal law.

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M. Hospital reports

Any reports which include individual patient information generally are confidential. Moreover, HIPPA prevents disclosure of certain medical information. To the extent any information in these records is exempted from disclosure by HIPPA, it is likewise exempted from the definition of “government record” under OPRA. See N.J.S.A. 47:1A-1 and 9.

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N. Personnel records

N.J.S.A. 47:1A-10 provides:

an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record;

personnel or pension records of any individual shall be accessible when required to be disclosed by another law, when disclosure is essential to the performance of official duties of a person duly authorized by this State or the United States, or when authorized by an individual in interest; and

data contained in information which disclose conformity with specific experiential, educational or medical qualifications required for government employment or for receipt of a public pension, but not including any detailed medical or psychological information, shall be a government record.

Libertarians for Transparent Government v. Cumberland County, 465 N.J. Super. 11 (App. Div. 2020)

(Note: Case was heard by NJ Supreme Court on 9/14/21 – awaiting decision).

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6. Evaluations/performance reviews

N.J.S.A. 47:1A-10 provides:

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7. Complaints filed against employees

A “government record” does not include, “information generated by or on behalf of public employers or public employees in connection with any sexual harassment complaint filed with a public employer or with any grievance filed by or against an individual or in connection with collective negotiations, including documents and statements of strategy or negotiating position.” N.J.S.A. 47:1A-1.1.

Moreover, N.J.S.A. 47:1A-10 provides:

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8. Other

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O. Police records

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1. Accident reports

N.J.S.A. 47:1A-1.1:

A government record shall not include the following information which is deemed to be confidential for the purposes of P.L.1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented:

* * *

when used in a criminal action or proceeding in this State which relates to the death of that person,

for use in the field of forensic pathology or for use in medical or scientific education or research, or

for use by any law enforcement agency in this State or any other state or federal law enforcement agency.

N.J.S.A. 39:4-131 provides:

The commission shall prepare and supply to police departments and other suitable agencies, forms for accident reports calling for sufficiently detailed information with reference to a motor vehicle accident, including the cause, the conditions then existing, the persons and vehicles involved, the compliance with P.L.1984, c. 179 (C.39:3-76.2e et seq.) by the operators and passengers of the vehicles involved in the accident, whether the operator of the vehicle was using a cellular telephone when the accident occurred, and such other information as the chief administrator may require.

Every law enforcement officer who investigates a vehicle accident of which report must be made as required in this Title, or who otherwise prepares a written report as a result of an accident or thereafter by interviewing the participants or witnesses, shall forward a written report of such accident to the commission, on forms furnished by it, within five days after his investigation of the accident.

Such written reports required to be forwarded by law enforcement officers and the information contained therein shall not be privileged or held confidential. Every citizen of this State shall have the right, during regular business hours and under supervision, to inspect and copy such reports and shall also have the right in person to purchase copies of the reports at the same fee established by section 6 of P.L.2001, c. 404 (C.47:1A-5). If copies of reports are requested other than in person, an additional fee of up to $5.00 may be added to cover the administrative costs of the report. Upon request, a police department shall send an accident report to a person through the mail or via fax as defined in section 2 of P.L.1976, c. 23 (C.19:59-2). The police department may require the person requesting the report to provide a completed request form and the appropriate fee prior to faxing or mailing the report. The police department shall provide the person requesting the report with the option of submitting the form and providing the appropriate fee either in person, through the mail, or via fax as defined in section 2 of P.L.1976, c. 23 (C.19:59-2).

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2. Police blotter

Police incident logs constitute “government records” under OPRA and are not exempt as criminal investigatory records because there is no criminal investigation at the time a call is made and recorded in the incident log.

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3. 911 tapes

911 tapes fall within the definition of a "government record" under OPRA. Because 911 tapes are required by law to be made and kept, they do not qualify as criminal investigatory records under OPRA. 911 tapes do not become cloaked with confidentiality simply because they become part of a criminal investigation. Serrano v. South Brunswick Twp., 358 N.J. Super. 352 (App. Div. 2003). They are subject to the analysis set forth in N.J.S.A. 47:1A-3(a).

In Asbury Park Press v. Ocean County Prosecutor’s Office, 374 N.J. Super. 312 (L. Div. 2004), the court concluded that the family members of the victim who called 911 would suffer upon the release of the call required that it be confidential. Even a redacted version of a transcript, deleting the victim's side of the conversation, would have impermissibly violated the expectation of privacy, because much of what the dispatcher said simply repeated, to obtain confirmation, what the victim had previously said.

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4. Investigatory records

N.J.S.A. 47:1A-1.1 defines "criminal investigatory record" as “a record which is not required by law to be made, maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding.” N.J.S.A. 47:1A-1.1 also states that “criminal investigatory records” are not “government records.”

N.J.S.A. 47:1A-3 provides:

Notwithstanding the provisions of P.L.1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented, where it shall appear that the record or records which are sought to be inspected, copied, or examined shall pertain to an investigation in progress by any public agency, the right of access provided for in P.L.1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented may be denied if the inspection, copying or examination of such record or records shall be inimical to the public interest; provided, however, that this provision shall not be construed to allow any public agency to prohibit access to a record of that agency that was open for public inspection, examination, or copying before the investigation commenced. Whenever a public agency, during the course of an investigation, obtains from another public agency a government record that was open for public inspection, examination or copying before the investigation commenced, the investigating agency shall provide the other agency with sufficient access to the record to allow the other agency to comply with requests made pursuant to P.L.1963, c. 73 (C.47:1A-1 et seq.).
Notwithstanding the provisions of P.L.1963, c. 73 (C.47:1A-1 et seq.), as amended and supplemented, the following information concerning a criminal investigation shall be available to the public within 24 hours or as soon as practicable, of a request for such information:

where a crime has been reported but no arrest yet made, information as to the type of crime, time, location and type of weapon, if any;

if an arrest has been made, information as to the name, address and age of any victims unless there has not been sufficient opportunity for notification of next of kin of any victims of injury and/or death to any such victim or where the release of the names of any victim would be contrary to existing law or court rule. In deciding on the release of information as to the identity of a victim, the safety of the victim and the victim's family, and the integrity of any ongoing investigation, shall be considered;

if an arrest has been made, information as to the defendant's name, age, residence, occupation, marital status and similar background information and, the identity of the complaining party unless the release of such information is contrary to existing law or court rule;

information as to the text of any charges such as the complaint, accusation and indictment unless sealed by the court or unless the release of such information is contrary to existing law or court rule;

information as to the identity of the investigating and arresting personnel and agency and the length of the investigation;

information of the circumstances immediately surrounding the arrest, including but not limited to the time and place of the arrest, resistance, if any, pursuit, possession and nature and use of weapons and ammunition by the suspect and by the police; and

information as to circumstances surrounding bail, whether it was posted and the amount thereof.

North Jersey Media Group, Inc. v. Twp. of Lyndhurst, et al., 229 N.J. 541 (2017) - Where police fatally shot a man after a car chase, a media organization was entitled to disclosure of unredacted use of force reports under the Open Public Records Act (OPRA) because under the use of force policy established by the Attorney General, which had the force of law for police officers, the officers were required to make and maintain use of force reports and, accordingly, OPRA's “criminal investigatory record” exception to disclosure did not apply. The Court, however, held that the dash-cam videos at issue did fall within the criminal investigatory records exemption and, thus, were not available under OPRA. The basis for the Court’s decision was that it was unaware of any Attorney General directive relating to the use of dash-cams. Additionally, it found that the dash-cam videos pertained to an investigation into actual or potential violations of criminal law – thus satisfying the second requirement of the criminal investigatory records exemption. The Court noted that it was unaware of whether the officers in this case acted pursuant to any local directives and that the “intriguing issue” of whether a local directive carries the force and effect of law would be addressed in Paff v. Ocean Cty. Prosecutor’s Office (see below).

The Court further held that investigative reports and witness statements, like the ones requested in this case, ordinarily contain factual details and narrative descriptions of the event. As a result, the danger to an ongoing investigation would typically weigh against disclosure of such records while the investigation is under way, particularly in its early stages. Thus, the Court found that while it may be appropriate to deny a request for investigative reports under Section 3(a) early in an investigation – as in this case – the outcome might be different later in the process.

In conducting the common law balancing of the competing interests in disclosure and confidentiality, the Court looked at the level of detail contained in the materials requested. It held that the interest in the integrity of investigations, asserted by the Attorney General in that case, is the strongest when it comes to the disclosure of investigative reports, witness statements and other comparably detailed documents. The Court found that in those areas, the State’s interest in confidentiality outweighs that of the requestor. The Court held that with respect to the dash-cam videos, which do not contain narrative summaries, the interest in disclosure outweighs the generic safety concerns raised by the State. Thus, notwithstanding the fact that the Court determined that the dash-cam videos fall within OPRA’s criminal investigatory records exemption, the Court held that disclosure of the dash-cam videos was nonetheless required under the common law.

Paff v. Ocean County Prosecutor's Office, 235 N.J. 1 (2016) - A General Order was issued under the authority of the Chief of the Barnegat Township Police Department that applied only to that department. The Order instructed officers to record by MVR several categories of incidents. It is undisputed that the MVR recordings at the center of this appeal were made in compliance with the Order. The Court held that the MVR recordings were not "required by law" within the meaning of N.J.S.A. 47:1A-1.1, that they constitute criminal investigatory records under that provision, and that they are therefore not subject to disclosure under OPRA. The Court agreed with the Appellate Division’s conclusion that the recordings were not within OPRA's "investigations in progress" provision, and that OPRA's privacy clause does not exempt the recordings from disclosure. The Court remanded the matter to the trial court for consideration of plaintiff's claim of a common law right of access to the MVR recordings.

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5. Arrest records

N.J.S.A. 47:1A-3(b) provides:

Notwithstanding the provisions of P.L.1963, c. 73 (C.47:1A-1 et seq.), as amended and supplemented, the following information concerning a criminal investigation shall be available to the public within 24 hours or as soon as practicable, of a request for such information:

where a crime has been reported but no arrest yet made, information as to the type of crime, time, location and type of weapon, if any;

information as to the identity of the investigating and arresting personnel and agency and the length of the investigation;

information as to circumstances surrounding bail, whether it was posted and the amount thereof.

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6. Compilations of criminal histories

Exemption 7(C) of the Freedom of Information Act (FOIA), codified at 5 U.S.C.S. § 552(b)(7)(C), requires the court to balance the privacy interest in maintaining the practical obscurity of the rap sheets against the public interest in their release. United States Dept. of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749 (1989).

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7. Victims

Pursuant to N.J.S.A. 47:1A-1.1, victims’ records are not “government records,” except that a victim of a crime shall have access to the victim’s own records. Moreover, under N.J.S.A. 47:1A-1.1, “any written request by a crime victim for a record to which the victim is entitled to access as provided in this section, including, but not limited to, any law enforcement agency report, domestic violence offense report, and temporary or permanent restraining order” is not a “government record.”

N.J.S.A. 47:1A-1.1 contains the following definitions:

“Victim’s record” means an individually-identifiable file or document held by a victims’ rights agency which pertains directly to a victim of a crime except that a victim of a crime shall have access to the victim’s own records.

“Victim of a crime” means a person who has suffered personal or psychological injury or death or incurs loss of or injury to personal or real property as a result of a crime, or if such a person is deceased or incapacitated, a member of that person’s immediate family.

“Victims’ rights agency” means a public agency, or part thereof, the primary responsibility of which is providing services, including but not limited to food, shelter, or clothing, medical, psychiatric, psychological or legal services or referrals, information and referral services, counseling and support services, or financial services to victims of crimes, including victims of sexual assault, domestic violence, violent crime, child endangerment, child abuse or child neglect, and the Victims of Crime Compensation Board, established pursuant to P.L.1971, c.317 (C.52:4B-1 et seq.) and continued as the Victims of Crime Compensation Office pursuant to P.L.2007, c.95 (C.52:4B-3.2 et al.) and Reorganization Plan No. 001-2008.

N.J.S.A. 47:1A-1 provides, in part:

N.J.S.A. 47:1A-2.2 provides:

Notwithstanding the provisions of P.L.1963, c. 73 (C.47:1A-1 et seq.) or the provisions of any other law to the contrary, where it shall appear that a person who is convicted of any indictable offense under the laws of this State, any other state or the United States is seeking government records containing personal information pertaining to the person's victim or the victim's family, including but not limited to a victim's home address, home telephone number, work or school address, work telephone number, social security account number, medical history or any other identifying information, the right of access provided for in P.L.1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented shall be denied.
A government record containing personal identifying information which is protected under the provisions of this section may be released only if the information is necessary to assist in the defense of the requestor. A determination that the information is necessary to assist in the requestor's defense shall be made by the court upon motion by the requestor or his representative.
Notwithstanding the provisions of P.L.1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented, or any other law to the contrary, a custodian shall not comply with an anonymous request for a government record which is protected under the provisions of this section.

Additionally, N.J.A.C. 10A:22-2.1 provides:

(a) Pursuant to N.J.S.A. 47:1A-2.2 , a person convicted of any indictable offense under the laws of this State, any other state or the United States shall be denied access to a government record if the record contains personal information pertaining to the person's victim(s) or family member(s) of a victim(s).

(b) An exception to (a) above may be made only if a court, upon motion by the requester or his or her representative, has determined that the information is necessary to assist in the defense of the requester. The inmate or representative thereof shall submit the determination by the court to the custodian of records for review and release authorization determination.

Under N.J.S.A. 47:1A-5(b)(2):

No fee shall be charged to a victim of a crime for a copy or copies of a record to which the crime victim is entitled to access, as provided in section 1 of P.L.1995, c.23 (C.47:1A-1.1).

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8. Confessions

A confession that has been admitted into evidence is accessible to the public. See New Jersey Court Rules 1:38-1 et seq. Prior to being admitted into evidence in a court proceeding, a confession is a “criminal investigatory record” and is exempt from the definition of “government record” under OPRA.

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9. Confidential informants

The identities of confidential informants are not accessible under OPRA, because they are exempted as part of “criminal investigatory records.”

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10. Police techniques

N.J.S.A. 47:1A-1.1 exempts from access:

emergency or security information or procedures for any buildings or facility which, if disclosed, would jeopardize security of the building or facility or persons therein;

security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software.

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and

See also Gilleran v. Township of Bloomfield, 227 N.J. 159 (2016) - Supreme Court of New Jersey determined that security camera footage of municipal parking lot was exempt from access under OPRA due to the two security exemptions in OPRA.

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11. Mugshots

Executive Order 69 (Whitman 1997) provides that fingerprint cards, plates and photographs and other similar criminal investigation records that are required to be made, maintained or kept by any State or local government agency are exempt from disclosure under OPRA.

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12. Sex offender records

In Doe v. Poritz, 142 N.J. 1 (1995), the Supreme Court examined the constitutionality of two statutes concerning sex offenders that were enacted as part of a group of laws generally referred to as Megan's Law. The Registration Law, N.J.S.A. 2C:7-1 to :7-5, required that certain convicted sex offenders register with law enforcement authorities. The Community Notification Law, N.J.S.A. 2C:7-6 to :7-11, provided for notice to the community of the presence of such offenders.

In ruling that both laws were constitutional, the court held that the constitution did not prevent society from attempting to protect itself from convicted sex offenders, so long as the means of protection were reasonably designed for that purpose, and only for that purpose, and were not designed to punish. The court found, however, that appellant had a protectable liberty interest in his privacy and reputation, which triggered the right to due process. The court, therefore, concluded that a judicial hearing was constitutionally mandated prior to community notification under the Community Notification Law.

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13. Emergency medical services records

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14. Police video (e.g, body camera footage, dashcam videos)

In New Jersey, the state’s Body Worn Camera Law (“BWCL”) states that body-worn camera recordings are not “criminal investigatory records” exempt from disclosure except those recordings that: “are not subject to a minimum three-year retention period or additional retention requirements”; “are subject to a minimum three-year retention period” because they “capture[] images involving an encounter about which a complaint has been registered by a subject of the body worn camera recording” and the subject requests that the video not be publicly disclosed; “are subject to a minimum three-year retention period” because they are voluntarily requested by an officer (or their immediate supervisor) whose camera made the recording or who is the subject of the recording and the officer (or their supervisor) “reasonably asserts the recording has evidentiary or exculpatory value,” or if the recording is “being retained solely and exclusively for police training purposes”; or “are subject to a minimum three-year retention period” because a member of the public, a minor, or a deceased individual is the subject of the recording, and they or their legal guardian or next of kin requests the video not be publicly disclosed. N.J.S. §§ 40a:14-118.5(l), (j); see also Fuster v. Twp. of Chatham, 477 N.J. Super. 477, 488 (App. Div. 2023) (“The BWCL specifically clarifies that BWC video recordings are not considered ‘criminal investigatory record[s]’ exempt from disclosure under OPRA and provides four exemptions from ‘public inspection’ of BWC video under N.J.S.A. 40A:14-118.5(l).”); Richard Rivera, LLC v. Twp. of Bloomfield, No. A-3338-17T1, 2020 WL 109639, at *3 (N.J. Super. Ct. App. Div. Jan. 9, 2020) (“Because BWC footage is required by law to be made, maintained, and kept, it does not qualify as a ‘criminal investigatory record’ exempt from disclosure under OPRA.”).

N.J.A.C. 10A:71-2.2 provides:

(a) In addition to records designated as confidential pursuant to the provisions of N.J.S.A. 47:1A-1 et seq., any other law, rule promulgated under the authority of any statute or Executive Order of the Governor, resolution of both houses of the Legislature, Executive Order of the Governor, Rules of Court, or any Federal law, Federal regulation, or Federal order, the following records shall be deemed confidential and shall not be subject to public access:

Information, files, documents, reports, records or other written materials concerning an offender's medical, psychiatric or psychological history, diagnosis, treatment or evaluation;
Information, files, documents, reports, records or other written materials concerning an offender's alcohol, drug or other substance abuse evaluation, history and/or treatment;
Information, files, documents, reports, records or other written materials that, if disclosed, would infringe or jeopardize privacy rights of the offender or others or endanger the life or physical safety of any person;
Investigative reports or information, including those from informants that, if disclosed, would impede ongoing investigations, create a risk of reprisal, or interfere with the security or orderly operation of an institution or a community program;
Investigative reports or information compiled or intended for law enforcement purposes that, if disclosed, would impede ongoing investigations, interfere with law enforcement proceedings, constitute an unwarranted infringement of personal privacy, reveal the identity of a confidential source or confidential information furnished only by a confidential source, reveal investigative techniques and procedures or endanger the life or physical safety of law enforcement personnel, confidential informants, victims or witnesses;
Standard operating procedures, manuals, and training materials, that may reveal the Board's surveillance, security, tactical, investigative, or operational techniques, measures, or procedures, which, if disclosed, would create a risk to the safety of persons, property, electronic data, or software, or compromise the Board's ability to effectively conduct investigations;
Information, files, documents, reports, records or other written materials that, if disclosed, would impede Board functions by discouraging persons from providing information to the Board;
An electronic recording or a transcript, if prepared, of any proceeding of the Board;
Such other information, files, documents, reports, records or other written materials as the Board may deem confidential to insure the integrity of the parole and parole supervision processes; and
A record that consists of information, statement or testimony in written, audio or video form provided by a victim or, if the victim is deceased, the nearest relative of the victim. This shall include, but not be limited to, any information obtained pursuant to N.J.A.C. 10A:71-3.48, Victim registration, the continuing notice and the extent of any physical harm or psychological or emotional harm or trauma suffered by the victim, the extent of any loss of earnings or ability to work suffered by the victim, the continuing effect of the crime upon the victim's family, personal information pertaining to the victim or victim's family such as the victim's home address, home telephone number, work or school address, work telephone number, social security account number, medical history or any other identifying information unless the requested information, statement or testimony in written, audio or video form was given at a public proceeding.

(b) No information, files, documents, reports, records or other written material deemed confidential pertaining to inmates or parolees shall be reviewed by any person except a Board member or employee or individual or law enforcement agency authorized by the Board or by the Chairperson.

(c) Inmates or parolees shall be afforded disclosure of adverse material or information considered at a hearing, provided such material is not classified as confidential by the Board or the Department. If disclosure is withheld, the reason for nondisclosure shall be noted in the Board's files, and such material or information shall be identified as confidential.

(d) If any non-confidential file, document, report, record or other written material shall contain information deemed confidential pursuant to (a) above, the information deemed confidential shall be deleted prior to the file, document, report, record or other written material being reviewed by or released to any person or agency.

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Q. Professional licensing records

Licensing records held by public agencies are “government records” under OPRA. They may, however, be exempt from access under one of the specific exemptions contained in OPRA or under a separate statute or other legal authority pertaining to the specific license and/or record at issue.

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R. Public utility records

Records filed with the Board of Public Utilities (“BPU”) are “government records” under OPRA. Certain records, however, may be exempt from access under one of the specific exemptions contained in OPRA. Moreover, the BPU regulations (N.J.A.C. 14:3-6.1-6.8) may exempt certain records from access.

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S. Real estate appraisals, negotiations

To the extent these records are made, maintained or kept on file by a government agency, they are “government records” as defined by OPRA. They may, however, be exempt from access under one of the specific exemptions contained in OPRA or under a separate statute or other legal authority pertaining to the specific record.

5. Zoning records

These records are “government records” as defined by OPRA.

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T. School and university records

N.J.S.A. 47:1A-1.1 provides, in part:

A government record shall not include, with regard to any public institution of higher education, the following information which is deemed to be privileged and confidential:

pedagogical, scholarly and/or academic research records and/or the specific details of any research project conducted under the auspices of a public higher education institution in New Jersey, including, but not limited to research, development information, testing procedures, or information regarding test participants, related to the development or testing of any pharmaceutical or pharmaceutical delivery system, except that a custodian may not deny inspection of a government record or part thereof that gives the name, title, expenditures, source and amounts of funding and date when the final project summary of any research will be available;

test questions, scoring keys and other examination data pertaining to the administration of an examination for employment or academic examination;

records of pursuit of charitable contributions or records containing the identity of a donor of a gift if the donor requires non-disclosure of the donor's identity as a condition of making the gift provided that the donor has not received any benefits of or from the institution of higher education in connection with such gift other than a request for memorialization or dedication;

valuable or rare collections of books or documents obtained by gift, grant, bequest or devise conditioned upon limited public access;

information contained on individual admission applications; and

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1. Birth certificates

N.J.A.C. 8:2-2.1 provides:

(a) The State Registrar or a local registrar may only issue a certified copy of a record of live birth to a person who satisfies the following requirements:

The person is able to identify the record;
The person provides, at a minimum, all of the information requested on the Vital Statistics and Registration application form; and
The person produces documentation verifying that he or she is:
The subject of the record of live birth;
The subject's parent;

iii. The subject's legal guardian or legal representative;

The subject's child, grandchild or sibling, if of legal age;
A State or Federal agency requesting the record for official purposes;
A person requesting the record pursuant to a court order; or

vii. A person requesting the record under emergent circumstances, as determined on a case-by-case basis by the Commissioner.

N.J.A.C. 8:2-2.2 provides:

(a) The State Registrar or local registrar may issue certifications containing information obtained from the record of live birth to requestors not identified in N.J.A.C. 8:2B-3.1(a)3 so long as those requestors are first able to identify the record sought.

(b) All certifications issued under (a) above shall state that they are for informational purposes only and are not to be used for identification or legal purposes.

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2. Marriage and divorce

Marriage Certificates are “government records” as defined by OPRA. See N.J.A.C. 8:2B-3.1 and N.J.S.A. 26:8-44. Divorce decrees are issued by a court and are subject to New Jersey Court Rule 1:38-1 et seq. governing access to court records.

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3. Death certificates

N.J.A.C. 8:2A-2.1 provides:

(a)The State Registrar or a local registrar may only issue a certified copy of a death record to a person who satisfies the following requirements:

The person is able to identify the record;
The person provides, at a minimum, all of the information requested on the Vital Statistics and Registration form entitled “Application for a Certification or a Certified Copy of a Vital Record,” available from the Department upon request by calling (609) 292-4087 and at http://nj.gov/health/vital/vital.shtml; and
The person produces documentation verifying that he or she is:
The parent of the subject of the death record;
The subject's legal guardian or legal representative;

iii. The subject's spouse or domestic partner;

The subject's child, grandchild or sibling, if of legal age;
AState or Federal agency requesting the record for official purposes;
A person requesting the record pursuant to a court order; or

vii. A person requesting the record under emergent circumstances, as determined on a case-by-case basis by the Commissioner.

(b) The certified copy of the death record shall include information deemed appropriate by the State Registrar; however, at a minimum, it shall include the name of the decedent, place of death (county, municipality), date of death, sex, date of birth, date of issuance and manner of death, providing this information is available.

(c) The certified copy of the death record may include other information; however, the last sickness and death particulars (cause of death and medical particulars) will only be included on the certified copy of the death record if the applicant satisfies the requirement in (a)3 above and requests that the last sickness and death particulars be included.

(d) Any of the relatives to the decedent listed in (a)3i through iv above, with the exception of the funeral director as legal representative, may consent to the release to a third party of a certified copy of the death record containing cause of death and medical particulars. Such consent must be provided in the form of an Authorization for Release of Cause of Death similar to that set forth in Appendix A, incorporated herein by reference.

(e) Any certified copy of a death record, with or without last sickness and death particulars, may be released without consent under the following conditions:

To qualified personnel for the purpose of conducting scientific research only under the following conditions:
An Institutional Review Board, constituted pursuant to Federal regulation 45 C.F.R. 46.101 et seq., shall review and approve the research protocol prior to release of the death record;
Research personnel shall not identify the subject of the record, directly or indirectly, in any report of the research; and

iii. Research personnel shall not disclose the identity of the subject of the record in any manner;

To qualified personnel for the purpose of conducting management audits, financial audits or program evaluation only under the following conditions:
Personnel shall not identify the subject of the record, directly or indirectly, in any report of an audit or evaluation;
Personnel shall not disclose the identity of the subject of the record in any manner; and

iii. Identifying information shall not be released to the personnel unless it is vital to the audit or evaluation;

To the Department as required by State or Federal law; or
As permitted by the rules adopted by the Commissioner for the purposes of disease prevention and control.

N.J.A.C. 8:2A-2.2 provides:

(a) The State Registrar or local registrar may issue certifications containing information obtained from the death record to requestors not identified in N.J.A.C. 8:2A–2.1(a)3, so long as those requestors are first able to identify the record sought.

(b) All certifications issued under (a) above shall state that they are for informational purposes only and are not to be used for identification or legal purposes.

(c) The certification of the death record shall include, at a minimum, the name of the decedent, place of death (county, municipality), date of death, sex, date of birth, date of issuance and manner of death providing this information is available.

(d) The certification of the death record may include other information; however, the last sickness and death particulars (cause of death and medical particulars) will only be included on the certification of the death record if the applicant produces documentation verifying that he or she is:

The parent of the subject of the death record;
The subject's legal guardian or legal representative;
The subject's spouse or domestic partner;
The subject's child, grandchild or sibling, if of legal age;
A State or Federal agency requesting the record for official purposes;
A person requesting the record pursuant to a court order; or
A person requesting the record under emergent circumstances, as determined on a case-by-case basis by the Commissioner.

(e) Any of the relatives to the decedent listed in (d)1 through 4 above, with the exception of the funeral director as legal representative, may consent to the release to a third party of a certification of the death record containing cause of death and medical particulars. Such consent must be provided in the form of an Authorization for Release of Cause of Death similar to that set forth in the chapter Appendix, incorporated herein by reference.

(f) Any certification of a death record, with or without last sickness and death particulars, may be released without consent under the following conditions:

To qualified personnel for the purpose of conducting scientific research only under the following conditions:
An Institutional Review Board, constituted pursuant to Federal regulation 45 C.F.R. 46.101 et seq., shall review and approve the research protocol prior to release of the death record;
Research personnel shall not identify the subject of the record, directly or indirectly, in any report of the research; and

iii. Research personnel shall not disclose the identity of the subject of the record in any manner;

To qualified personnel for the purpose of conducting management audits, financial audits or program evaluation only under the following conditions:
Personnel shall not identify the subject of the record, directly or indirectly, in any report of an audit or evaluation;
Personnel shall not disclose the identity of the subject of the record in any manner; and

iii. Identifying information shall not be released to the personnel unless it is vital to the audit or evaluation;

To the Department as required by State or Federal law; or
As permitted by the rules adopted by the Commissioner for the purposes of disease prevention and control.

(g) The State Registrar or other custodian of vital records shall not permit physical inspection or access to the full death record, nor shall he or she disclose information, copy or issue the full death record, unless he or she is satisfied that the applicant is authorized to obtain a full copy of such record under N.J.A.C. 8:2A–2.1 or 2.2.

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4. Infectious disease and health epidemics

N.J.S.A. 47:1A-1.1 exempts from the definition of “Government Record:”

emergency or security information or procedures for any buildings or facility which, if disclosed, would jeopardize security of the building or facility or persons therein;

security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software.

Additionally, N.J.S.A. 47:1A-5(i)(2) provides:

(2) During a period declared pursuant to the laws of this State as a state of emergency, public health emergency, or state of local disaster emergency, the deadlines by which to respond to a request for, or grant or deny access to, a government record under paragraph (1) of this subsection or subsection e. of this section shall not apply, provided, however, that the custodian of a government record shall make a reasonable effort, as the circumstances permit, to respond to a request for access to a government record within seven business days or as soon as possible thereafter.

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IV. Procedure for obtaining records

N.J.S.A. 47:1A-5 contains detailed procedural guidelines for obtaining records.

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A. How to start

N.J.S.A. 47:1A-5(f) provides:

The custodian of a public agency shall adopt a form for the use of any person who requests access to a government record held or controlled by the public agency. The form shall provide space for the name, address, and phone number of the requestor and a brief description of the government record sought. The form shall include space for the custodian to indicate which record will be made available, when the record will be available, and the fees to be charged. The form shall also include the following: (1) specific directions and procedures for requesting a record; (2) a statement as to whether prepayment of fees or a deposit is required; (3) the time period within which the public agency is required by P.L.1963, c. 73 (C.47:1A-1 et seq.) as amended and supplemented, to make the record available; (4) a statement of the requestor's right to challenge a decision by the public agency to deny access and the procedure for filing an appeal; (5) space for the custodian to list reasons if a request is denied in whole or in part; (6) space for the requestor to sign and date the form; (7) space for the custodian to sign and date the form if the request is fulfilled or denied. The custodian may require a deposit against costs for reproducing documents sought through an anonymous request whenever the custodian anticipates that the information thus requested will cost in excess of $5 to reproduce.

The Appellate Division held in Renna v. Cty. of Union, 407 N.J. Super. 230 (App. Div. 2009) that all OPRA requests must be in writing but that no custodian shall withhold records if the written request contains the requisite information prescribed by N.J.S.A. 47:1A-5(f) (name, address, phone number and a brief description of the records sought).

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1. Who receives a request?

“A request for access to a government record shall be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian.” N.J.S.A. 47:1A-5(g). N.J.S.A. 47:1A-1.1 defines “custodian” to mean “in the case of a municipality, the municipal clerk and in the case of any other public agency, the officer officially designated by formal action of that agency's director or governing body, as the case may be.”

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2. Does the law cover oral requests?

N.J.S.A. 47:1A-5(g) requires a request for access to a government record to be in writing.

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3. Required contents of a written request

All OPRA requests must contain the requestor’s name, address, and phone number and a brief description of the government record sought.

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4. Can the requester choose a format for receiving records?

N.J.S.A. 47:1A-5(d) provides:

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, that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both.

A written communication outlining the reasons that the requested records are accessible is advisable.

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3. Is delay recognized as a denial for appeal purposes?

In the event a custodian fails to respond within seven business days after receiving a request, the failure to respond shall be deemed a denial of the request, unless the requestor has elected not to provide a name, address or telephone number, or other means of contacting the requestor. N.J.S.A. 47:1A-5(i)(1).

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4. Any other recourse to encourage a response

Written correspondence from the news media’s attorney to the attorney representing the public agency may be effective.

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C. Administrative appeal

N.J.S.A. 47:1A-6 provides:

A person who is denied access to a government record by the custodian of the record, at the option of the requestor, may:

institute a proceeding to challenge the custodian's decision by filing an action in Superior Court which shall be heard in the vicinage where it is filed by a Superior Court Judge who has been designated to hear such cases because of that judge's knowledge and expertise in matters relating to access to government records; or

in lieu of filing an action in Superior Court, file a complaint with the Government Records Council established pursuant to section 8 of P.L.2001, c. 404 (C.47:1A-7).

The right to institute any proceeding under this section shall be solely that of the requestor. Any such proceeding shall proceed in a summary or expedited manner. The public agency shall have the burden of proving that the denial of access is authorized by law. If it is determined that access has been improperly denied, the court or agency head shall order that access be allowed. A requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee.

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3. Other

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E. Court action

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1. Who may sue?

Any "citizen" of New Jersey who has been denied the right to inspect, copy, or obtain a copy of public record may bring an action to enforce the rights granted under OPRA or the common law. Irval Realty Inc. v. Board of Public Utility Comm'rs, 61 N.J. 366 (1972). "Citizen" includes newspapers published or circulated in New Jersey and any private commercial enterprise, even if motivated solely by "private pecuniary gain." Techniscan Corp. v. Passaic Valley Water Comm’n, 218 N.J. Super. 226, 229 (App. Div. 1987).

Although OPRA expressly provides that “government records shall be readily accessible…by citizens of this State” (N.J.S.A. 47:1A-1), the New Jersey Attorney General’s Office has advised of its position that OPRA does not prohibit access by residents of other States.

“If it is determined that access has been improperly denied, the court or agency head shall order that access be allowed. A requestor who prevails in any proceeding shall be entitled to a reasonable attorney’s fee.” N.J.S.A. 47:1A-6.

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13. Settlement, pros and cons

Settlement discussions should be pursued prior to initiating litigation. Once litigation is initiated, while settlement is not impossible, it is generally unlikely. Any settlement after a lawsuit is commenced should include counsel fees and costs. A pro for settlement is that it removes any uncertainty as to the outcome. A con for settlement is that if the matter presents a novel issue, settlement will preclude a court decision on the issue that could impact future cases.

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F. Appealing initial court decisions

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1. Appeal routes

Appeal from an adverse decision in the Superior Court, Law Division is to the Appellate Division of the Superior Court. Likewise, appeal from a decision of the Government Records Council is to the Appellate Division of the Superior Court. Further appeal is to the New Jersey Supreme Court.

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2. Time limits for filing appeals

The time limit for appeal from a decision of the Superior Court, Law Division is 45 days from the entry of the final judgment or order. R. 2:4-1. A notice of petition for certification seeking review by the Supreme Court of a final judgment of the Appellate Division must be filed within 20 days of entry of final judgment. R. 2:12-3.

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3. Contact of interested amici

Amicus briefs on important issues of access are often filed by, among others, the New Jersey Press Association, the Reporters Committee for Freedom of the Press, and the New Jersey American Civil Liberties Union.

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G. Addressing government suits against disclosure

In the Matter of the New Jersey Firemen’s Ass’n Obligation to Provide Relief Applications Under the Open Public Records Act, 230 N.J. 258 (2017) involved the filing by the Association of a declaratory judgment action in response to an OPRA request so as to obtain a judicial determination of its responsibilities under OPRA. The Court held that the declaratory judgment action was improper because at the time it was filed the Association had already made a determination of its legal obligation with respect to the requested records and denied access to same, thereby extinguishing the controversy between the parties. The Supreme Court further held that once the Association denied access to the requested records, N.J.S.A. 47:1A-6 authorized only the plaintiff to seek judicial review of that decision. The Supreme Court expressly left open the question of “whether a public entity may file a pre-denial declaratory judgment action when confronted with an unsettled question that has not been litigated before and that implicates OPRA’s privacy prong, N.J.S.A. 47:1A-1.”

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Open Meetings

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The Act is triggered by any “meeting” held by any “public body,” as those terms are defined in N.J.S.A. 10:4-8.

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c. Are only certain agencies subject to the act?

All executive agencies that satisfy the definition of “public body” set forth in N.J.S.A. 10:4-8a are subject to all provisions of OPMA.

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2. Legislative bodies

The State Legislature and all county and local legislative bodies are subject to all provisions of OPMA. N.J.S.A. 10:4-8a.

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3. Courts

The judicial branch of government is specifically excluded from coverage by OPMA. N.J.S.A. 10:4-7 and N.J.S.A. 10:4-8a.

New Jersey Court Rules require that all trials, hearings or motions and other applications, pretrial conferences, arraignments, sentencing conferences (except with members of the probation department) and appeals shall be conducted in open court and on the record. R. 1:2-1 and 2. There are, however, exceptions to these requirements, including but not limited to: (i) grand jury proceedings, R. 3:6-7; (ii) hearing on request of a public official after grand jury censure, R. 3:6-9(c); (iii) prosecutor's application for a protective order, R. 3:13-3(e)(2); (iv) involuntary civil commitment hearings, R. 4:74-7(e); (v) interviews of jurors after return of verdict, Scott v. Salem Hospital, 116 N.J. Super. 29, 280 A.2d 843 (App. Div. 1971); (vi) initial determination on a claim of privilege, State v. Boiardo, 83 N.J. 350, 416 A.2d 973 (1980); (vii) hearings in adoption matters, N.J.S.A. 9:3-47 and 48; (viii) hearings in parentage disputes, N.J.S.A. 9:17-41; (ix) threshold inquiries into prior sexual conduct of victim of sex offense, N.J.S.A. 2C:14-7(a); and (x) inspection of documents of one claiming newsperson's privilege, N.J.S.A. 2A:84A-21.4.

New Jersey Court Rules also require that all court records and administrative records within the custody and control of the judiciary are open for public inspection and copying except as otherwise provided in this rule. R. 1:38-1. Exceptions include: (i) internal records, R. 1:38-3(b); (ii) records of criminal and municipal court proceedings, R. 1:38-3(c); (iii) records of family part proceedings, R. 1:38-3(d); (iv) records of guardianship proceedings, R. 1:38-3(e); and (v) other categories of records at set forth in R. 1:38-3(f).

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4. Nongovernmental bodies receiving public funds or benefits

A “public body,” as defined in OPMA, includes certain entities "organized under the laws of this State….” N.J.S.A. 10:4-8a. Unless there is a statute, ordinance or regulation creating the organization, it is not subject to the provisions of OPMA.

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5. Nongovernmental groups whose members include governmental officials

The Times of Trenton Publishing Corp. v. Lafayette Yard Community Development Corp., 183 N.J. 519 (2005). Lafayette Yards was a private, non-profit corporation established solely to assist the City of Trenton, the Trenton Parking Authority and the State of New Jersey to provide for the redevelopment of a 3.1 acre site in Trenton through the construction of a hotel, conference center and parking facility. The corporation operated under certain constraints consistent with the Internal Revenue Code so that it could issue tax exempt bonds because its debt would then be deemed by the IRS to have been issued on behalf of the State or a political subdivision thereof. Among the constraints was a provision that title to the corporation's property revert to the City of Trenton when the Corporation's indebtedness was retired. Similarly, the City appointed or approved of the appointment of at least 80 percent of the corporation's governing board. The Times of Trenton sought to attend meetings of the board under OPMA and sought access to the board minutes under OPRA. The New Jersey Supreme Court determined that the Corporation was subject to both statutes because it is a public body performing a governmental function within the sunshine law and was an instrumentality or agency created by a political subdivision under OPRA.

The NJ Supreme Court has held that: (1) records related to cases at public law school clinics are not subject to Open Public Records Act (OPRA); and (2) common-law right of access does not extend to records of a legal clinic at a public law school. See Sussex Commons Associates, LLC v. Rutgers, 210 N.J. 531 (2012).

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6. Multi-state or regional bodies

There are no reported cases applying the OPMA to multistate or regional bodies.

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7. Advisory boards and commissions, quasi-governmental entities

Governmental boards, commissions, councils and committees which are purely advisory in nature and which are not collectively empowered to perform governmental functions or spend public funds are exempt from the provisions of OPMA. N.J.S.A. 10:4-7; N.J.S.A. 10:4-8a; Township Committee of South Harrison Twp. v. Board of Chosen Freeholders of Gloucester County, 213 N.J. Super. 179, 205, 516 A.2d 1140 (Law Div. 1985).

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8. Other bodies to which governmental or public functions are delegated

The Times of Trenton Publishing Corp. v. Lafayette Yard Community Development Corp., 183 N.J. 519 (2005). Lafayette Yards was a private, non-profit corporation established solely to assist the City of Trenton, the Trenton Parking Authority and the State of New Jersey to provide for the redevelopment of a 3.1 acre site in Trenton through the construction of a hotel, conference center and parking facility. The corporation operated under certain constraints consistent with the Internal Revenue Code so that it could issue tax exempt bonds because its debt would then be deemed by the IRS to have been issued on behalf of the State or a political subdivision thereof. Among the constraints was a provision that title to the corporation's property revert to the City of Trenton when the Corporation's indebtedness was retired. Similarly, the City appointed or approved of the appointment of at least 80 percent of the corporation's governing board. The Times of Trenton sought to attend meetings of the board under the Sunshine Law and sought access to the board minutes under OPRA. The New Jersey Supreme Court determined that the Corporation was subject to both statutes because it is a public body performing a governmental function within the sunshine law and was an instrumentality or agency created by a political subdivision under OPRA.

The NJ Supreme Court held that: (1) records related to cases at public law school clinics are not subject to Open Public Records Act (OPRA); and (2) common-law right of access does not extend to records of a legal clinic at a public law school. See Sussex Commons Associates, LLC v. Rutgers, 210 N.J. 531 (2012).

Any commission, authority, board, council, committee or group of two or more persons which is created by statute, ordinance or regulation and collectively empowered as a voting body to perform a government function or spend public funds is subject to all the provisions of OPMA, N.J.S.A. 10:4-8(a). See Council of New Jersey State College Locals, AFT/AFL–CIO v. New Jersey State College Governing Boards Ass'n, 226 N.J. Super. 556, 558, 545 A.2d 204 (App. Div. 1988).

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9. Appointed as well as elected bodies

A “meeting” under the Act “means and includes any gathering whether corporeal or by means of communication equipment, which is attended by, or open to, all of the members of a public body, held with the intent, on the part of the members of the body present, to discuss or act as a unit upon the specific public business of that body. Meeting does not mean or include any such gathering (1) attended by less than an effective majority of the members of a public body, or (2) attended by or open to all the members of three or more similar public bodies at a convention or similar gathering.” N.J.S.A.10:4-8b.

Since the law applies to both discussions and actions by a public body, information-gathering and fact-finding sessions and all deliberations toward a decision must be open to the public and subject to the other requirements of OPMA. See Allan-Deane Corp. v. Bedminster Twp., 153 N.J. Super. 114, 379 A.2d 265 (App. Div. 1977); South Harrison Township Committee v. Board of Chosen Freeholders of Gloucester County, 210 N.J. Super. 370, 510 A.2d 42 (App. Div. 1986).

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b. Deliberation toward decisions

E. Categories of meetings subject to the law

The minutes must also contain a statement specifying the time, place and manner in which public notice of the meetings was given or that adequate notice was not given. N.J.S.A. 10:4-10. See AQN Associates, Inc. v. Township of Florence, 248 N.J. Super. 597, 615-16, 591 A.2d 995 (App. Div. 1991).

The minutes need not reveal why the action was or was not taken, only what took place and what final action was taken. Liebeskind v. Mayor and Mun. Council of Bayonne, 265 N.J. Super. 389, 400-01, 627 A.2d 677 (App. Div. 1993). Promptly available has been held to mean two weeks or before the next meeting of the public body, whichever is earlier. See Matawan Regional Teachers Ass'n v. Matawan-Aberdeen Regional Bd. of Educ., 212 N.J. Super. 328, 332-34 514 A.2d 1361 (Law Div. 1986).

The minutes of all public meetings, including portions of any meeting from which the public was properly excluded, are public records under the Open Public Records Act. See South Jersey Publishing Co. v. New Jersey Expressway Authority, 124 N.J. 478, 495 591 A.2d 921 (1991).

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2. Special or emergency meetings

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a. Definition

A special meeting is any meeting not listed on the annual schedule of regular meetings for which written advance notice of at least 48 hours can be given. N.J.S.A. 10:4-8d.

N.J.S.A. 10:4-9b governs emergency meetings and provides:

Upon the affirmative vote of three quarters of the members present a public body may hold a meeting notwithstanding the failure to provide adequate notice if:

(1) such meeting is required in order to deal with matters of such urgency and importance that a delay for the purpose of providing adequate notice would be likely to result in substantial harm to the public interest; and

(2) the meeting is limited to discussion of and acting with respect to such matters of urgency and importance; and

(3) notice of such meeting is provided as soon as possible following the calling of such meeting by posting written notice of the same in the public place described in section 3. d. above, and also by notifying the two newspapers described in section 3. d. by telephone, telegram, or by delivering a written notice of same to such newspapers; and

(4) either (a) the public body could not reasonably have foreseen the need for such meeting at a time when adequate notice could have been provided; or (b) although the public body could reasonably have foreseen the need for such meeting at a time when adequate notice could have been provided, it nevertheless failed to do so.

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b. Notice requirements

At least 48 hours advance notice must be given for any special meeting. N.J.S.A. 10:4-8d. Notice shall include the time, date, location and, to the extent known, the agenda and shall state whether formal action may or may not be taken.

Notice of special meetings must be posted in the same location as the annual schedule (prominently posted in at least one public place reserved for such announcements). N.J.S.A. 10:4-8d. Notice of a special meeting must also be "mailed, telephoned, telegrammed or hand delivered" to two newspapers which newspapers shall be designated by the public body to receive such notices because they have the greatest likelihood of informing the public within the area of jurisdiction of the public body of such meetings, one of which shall be the official newspaper, where any such has been designated by the public body or if the public body has failed to so designate, where any has been designated by the governing body of the political subdivision whose geographic boundaries are coextensive with that of the public body . N.J.S.A. 10:4-8d. Note that the newspaper need not publish the notice. However, one of the newspapers to which notice is sent must have a publication schedule which would permit publication prior to the meeting. See Worts v. Mayor and Council of Upper Township, 176 N.J. Super. 78, 83-84, 442 A.2d 112 (Ch. Div. 1980). Notice of a special meeting must also be filed with the clerk who received the annual schedule, N.J.S.A.10:4-8d, and mailed at least 48 hours in advance to any person who has filed a request for the annual schedule. N.J.S.A. 10:4-19.

Notice of an emergency meeting must be provided "as soon as possible following the calling of such meeting." N.J.S.A. 10:4-9b(3). Notice of an emergency meeting must be posted in the same location as the annual schedule (N.J.S.A. 10:4-8d and 10:4-9b(3)) and telephoned, telegrammed or delivered to the two newspapers which received the annual schedule. N.J.S.A. 10:4-8d and N.J.S.A.10:4-9b(3). An emergency meeting is limited to "discussion of and acting with respect to such matters of urgency and importance" as gave rise to the need to call the emergency meeting. N.J.S.A. 10:4-9b(2).

The penalties and remedies for failure to give adequate notice of a special meeting are the same as those for a regular meeting, i.e., injunctive relief, voiding of action taken, and fines. N.J.S.A. 10:4-15, 16 and 17. Where no valid emergency exists, or where there is not even an attempt to comply with the notice requirements for an emergency meeting, the same penalties may be imposed. See Dunn v. Mayor and Council and Clerk of Borough of Laurel Springs, 163 N.J. Super. 32, 34-36, 394 A.2d 145 (App. Div. 1978).

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c. Minutes

The information required in the minutes of a special or emergency meeting is the same as that for regular meetings, and the minutes must be "promptly" available to the public. N.J.S.A. 10:4-14.

In addition, the minutes of an emergency meeting must state:

that adequate notice was not provided, in which case such announcement shall state (1) the nature of the urgency and importance referred to in subsection [N.J.S.A. 10:4-9.b] and the nature of the substantial harm to the public interest likely to result from a delay in the holding of the meeting; (2) that the meeting will be limited to discussion of and acting with respect to such matters of urgency and importance; (3) the time, place, and manner in which notice of the meeting was provided; and (4) either (a) that the need for such meeting could not reasonably have been foreseen at a time when adequate notice could have been provided, in which event, such announcement shall specify the reason why such need could not reasonably have been foreseen; or (b) that such need could reasonably have been foreseen at a time when adequate notice could have been provided, but such notice was not provided, in which event the announcement shall specify the reason why adequate notice was not provided.

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

Pursuant to the Open Public Records Act and the common law, minutes are public records. N.J.S.A. 10:4-14; see also Payton v. New Jersey Turnpike Authority, 148 N.J. 524, 556, 691 A.2d 321 (1997); South Jersey Publishing Co. v. New Jersey Expressway Authority, 124 N.J. 478, 491, 591 A.2d 921 (1991); Atlantic City Convention Center Authority v. South Jersey Publishing Co., 135 N.J. 53, 63-64, 637 A.2d 1261 (1994).

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3. Closed meetings or executive sessions

(2) matter in which the release of information would impair a right to receive funds from the Government of the United States;

(3) material the disclosure of which constitutes an unwarranted invasion of individual privacy such as any records, data, reports, recommendations, or other personal material of any educational, training, social service, medical, health, custodial, child protection, rehabilitation, legal defense, welfare, housing, relocation, insurance, and similar program or institution operated by a public body pertaining to any specific individual admitted to or served by an institution or program, including but not limited to, information relative to the individual’s personal and family circumstances, and any material pertaining to admission, discharge, treatment, progress, or condition of any individual, unless the individual concerned (or, in the case of a minor or an incapacitated individual, the individual’s guardian) shall request in writing that the material be disclosed publicly;

(4) collective bargaining agreement, or the terms and conditions which are proposed for inclusion in any collective bargaining agreement, including the negotiation of the terms and conditions thereof with employees or representatives of employees of the public body;

(5) matter involving the purchase, lease, or acquisition of real property with public funds, the setting of banking rates, or investment of public funds, if it could adversely affect the public interest if discussion of the matters were disclosed;

(6) tactics and techniques utilized in protecting the safety and property of the public, provided that their disclosure could impair that protection, or investigations of violations or possible violations of the law;

(7) pending or anticipated litigation or contract negotiation other than in subsection b(4) herein in which the public body is, or may become, a party, or matters falling within the attorney-client privilege, to the extent that confidentiality is required in order for the attorney to exercise his ethical duties as a lawyer;

(8) matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion, or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the public body, unless all the individual employees or appointees whose rights could be adversely affected request in writing that the matter or matters be discussed at a public meeting; or

Note that this exception does not apply where the public body is appointing a person to fill the unexpired term of an elected official. See Gannett Satellite Info. Network, Inc. v. Board of Education of Borough of Manville, 201 N.J. Super. 65, 68-70, 492 A.2d 703 (Law Div. 1984);

(9) deliberations of a public body occurring after a public hearing that may result in the imposition of a specific civil penalty upon the responding party or the suspension or loss of a license or permit belonging to the responding party as a result of an act or omission for which the responding party bears responsibility.

Note that this exception applies only to the deliberations of a public body following a public hearing. However, where a state statute requires that the entire hearing be held in private, it takes precedence over this exception. See Cirangle v. Maywood Board of Education, 164 N.J. Super. 595, 601-02, 397 A.2d 400 (Law Div. 1979).

The closed session is limited to discussion; any action by the public body must be taken in a duly noticed public meeting. See N.J.S.A. 10:4-12b; Houman v. Mayor and Council of Borough of Pompton Lakes, 155 N.J. Super. 129, 157-58, 382 A.2d 413 (Law Div. 1977).

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B. Any other statutory requirements for closed or open meetings

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C. Court mandated opening, closing

1:2-1 provides:

All trials, hearings of motions and other applications, first appearances, pretrial conferences, arraignments, sentencing conferences (except with members of the probation department) and appeals shall be conducted in open court unless otherwise provided by rule or statute. If a proceeding is required to be conducted in open court, no record of any portion thereof shall be sealed by order of the court except for good cause shown, as defined by R. 1:38-11(b), which shall be set forth on the record. Settlement conferences may be heard at the bench or in chambers. Every judge shall wear judicial robes during proceedings in open court.

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III. Meeting categories - open or closed

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A. Adjudications by administrative bodies

Pursuant to the New Jersey Administrative Practice and Procedure Act, all contested matters before a state administrative agency are required to be referred to an administrative law judge for a hearing and a recommendation, report and decision. N.J.S.A. 52:14B-10(c). All evidentiary hearings, proceedings on motions and other applications before the administrative law judge are public, unless otherwise provided by statute, rule or regulation, or on order of the judge for good cause. N.J.A.C. 1:1-14.1. The principal statutory and regulatory exceptions to the public hearing requirement are in special education cases and in cases involving the Department of Human Services. Within 45 days of the hearing, the judge must issue a written report and decision, including recommended findings of fact and conclusions of law, to the administrative agency. N.J.S.A. 52: 14B-10(c). The head of the administrative agency or, in the case of a collective public body such as a commission, authority or board, the entire public body, then must issue a written decision adopting, rejecting or modifying the judge's decision.

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1. Deliberations closed, but not fact-finding

The deliberations of a public body considering a judge's recommended decision on imposition of a civil penalty or suspension or loss of a license or permit may be held in closed session. N.J.S.A. 10:4-12b(9). However, the final written decision of the head of the agency or the public body is a matter of public record. See N.J.S.A. 52:14B-10(d).

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A. When to challenge

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1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

OPMA provides that any person may apply to the Superior Court "for injunctive orders or other remedies" to ensure compliance with the provisions of the statute. N.J.S.A. 10:4-16. An application for an injunction prohibiting a public body from holding a closed meeting or emergency session will receive an expedited hearing when done by Order to Show Cause. See R. 4:52, 4:67 and 4:69.

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2. When barred from attending

Whenever a member of the public body believes that a meeting is being held in violation of the Act, that person shall immediately state this at the meeting together with specific reasons, which shall be recorded in the minutes. If the objections are overruled by a majority of those present, such a member may continue to participate at such meeting without penalty. N.J.S.A. 10:4-17.

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3. To set aside decision

A suit to set aside any action of a public body taken in noncompliance with the OPMA must be commenced within 45 days after the action sought to be voided has been made public. N.J.S.A. 10:4-15.

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4. For ruling on future meetings

Any person may apply to the Superior Court for injunctive orders or other remedies to ensure compliance with the provisions of OPMA. See N.J.S.A. 10:4-16.

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5. Other

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B. How to start

There is no provision for an administrative challenge to any action of a public body taken in noncompliance with the OPMA. All challenges must be made to the Superior Court by way of an action in lieu of prerogative writ. See N.J.S.A. 10:4-15 and 10:4-16.

"Any person" may institute a proceeding in lieu of prerogative writ in the Superior Court to void action taken in violation of OPMA. N.J.S.A. 10:4-15. “Any person” may apply to the Superior Court "for injunctive orders or other remedies to insure compliance with the provisions of [OPMA]." N.J.S.A. 10:4-16

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2. Will the court give priority to the pleading?

An application for injunctive relief or to void any action taken by a public body will be given an expedited hearing. See R. 4:52, 4:67 and 4:69.

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3. Pro se possibility, advisability

It is usually inadvisable to attempt a pro se court action because of the substantive and procedural complexities involved.

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4. What issues will the court address?

The court will address issues of injunctive relief to open the meeting, voiding of any action taken in noncompliance with OPMA, the right of access to future meetings, and any penalties for violation of the Act. N.J.S.A. 10:4-15, 16 and 17.

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a. Open the meeting

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b. Invalidate the decision

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On complaint of the Attorney General or the County Prosecutor, any person who knowingly violates any provision of OPMA shall be fined $100 for the first offense and no less than $100 nor more than $500 for any subsequent offense. N.J.S.A. 10:4-17.

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11. Other penalties

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D. Appealing initial court decisions

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1. Appeal routes

Appeal from an adverse decision of the Superior Court, Law Division is to the Appellate Division of the Superior Court. Appeal from the Appellate Division is to the New Jersey Supreme Court.

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2. Time limits for filing appeals

The time limit for appeal to the Appellate Division is 45 days from entry of the final judgment or Order. R. 2:4-1. A notice of petition for certification seeking review by the Supreme Court of a final judgment of the Appellate Division must be filed within 20 days of entry of final judgment. Rule 2:12-3.

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3. Contact of interested amici

Amicus briefs on important OPMA issues are sometimes filed by, among others, the New Jersey Press Association, the Reporters Committee for Freedom of the Press, and/or some of the major newspapers circulated in New Jersey.

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Open Government Guide

Author

Foreword

Open Records

I. Statute

A. Who can request records?

1. Status of requester

2. Purpose of request

3. Use of records

4. Can an individual request records on behalf of a third party or organization?

B. Whose records are and are not subject to the Act

1. Executive branch

2. Legislative bodies

3. Courts

4. Nongovernmental bodies

5. Multi-state or regional bodies

6. Advisory boards and commissions, quasi-governmental entities

7. Others

C. What records are and are not subject to the act?

1. What kinds of records are covered?

2. What physical form of records are covered

3. Are certain records available for inspection but not copying?

4. Telephone call logs

5. Electronic records (e.g., databases, metadata)

a. Can the requester choose a format for receiving records?

b. Can the requester obtain a customized search of computer databases to fit particular needs

c. Does the existence of information in electronic format affect its openness?

d. Online dissemination

6. Email

7. Text messages and other electronic messages

8. Social media posts

9. Computer software

10. Can a requester ask for the creation or compilation of a new record?

D. Fee provisions

1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

2. Particular fee specifications or provisions

3. Provisions for fee waivers

4. Requirements or prohibitions regarding advance payment

5. Have agencies imposed prohibitive fees to discourage requesters?

6. Fees for electronic records

E. Who enforces the Act?

1. Attorney General's role

2. Availability of an ombudsman

3. Commission or agency enforcement

F. Are there sanctions for noncompliance?

G. Record-holder obligations

1. Search obligations

2. Proactive disclosure requirements

3. Records retention requirements

4. Provisions for broad, vague, or burdensome requests

II. Exemptions and other legal limitations

A. Exemptions in the open records statute

1. Character of exemptions

2. Discussion of each exemption

B. Other statutory exclusions

C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

D. Protective orders and government agreements to keep records confidential

E. Interaction between federal and state law

1. HIPAA

2. DPPA

3. FERPA

4. Other

F. Segregability requirements

G. Agency obligation to identify basis of redaction or withholding

III. Record categories - open or closed

A. Autopsy and coroners reports

B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

C. Bank records

D. Budgets

E. Business records, financial data, trade secrets

F. Contracts, proposals and bids

G. Collective bargaining records

H. Economic development records

I. Election Records

J. Emergency Medical Services records

K. Gun permits

L. Homeland security and anti-terrorism measures

M. Hospital reports

N. Personnel records

1. Salary