Amendments to the New Jersey Open Public Records Act (OPRA)

Amendments to the Open Public Records Act, N.J.S.A. 47:1A-5(i) by P.L. 2020, c.10

The seven (7) business days period for a public entity to respond to OPRA requests is relaxed when New Jersey is officially under a state of emergency, public health emergency, or state or local disaster emergency.  If a custodian of a government record needs more time to produce these records, the custodian must still make a “reasonable effort” to respond to these requests as soon as possible thereafter.

OPRA’s statutory deadlines shall not apply for the duration of the following circumstances:

• Governor-declared state of emergency pursuant to the Disaster Control Act (N.J.S.A. App.A.9-33 et seq.);
• Public health emergency under the Emergency Health Powers Act (N.J.S.A. 26:13-1 et seq.);
• State or local disaster emergency is declared by a county or by a municipality

However, pursuant to P.L. 2020, c.10, custodians of public records must make a “reasonable effort” to respond to an OPRA request within seven (7) business days or as soon as possible thereafter during the declared State of Emergency. Additionally, such custodians should still follow the unamended deadlines if feasible.

As a reminder, if a “public agency” is not open for “regular business hours” due to regular or emergency closure, the Government Records Council has advised that it is reasonable to conclude that such periods of closure shall not count against the statutory response time frame.

Any disputes over extensions will be reviewed by the Government Records Council on a case-by-case basis.  The Government Records Council shall consider “extenuating circumstances” when deciding the reasonableness of extensions. These circumstances would include, but not be limited to the following:

• the ability to retrieve records that are being stored locally or remotely;
• converting records to another medium to accommodate the requestor;
• when there is an emergency closure of the public agency;
• when a public agency needs to reallocate resources to a higher priority due to force majeure.

Moreover, the Government Records Council has advised that if a Record Custodian’s public agency is operating under normal business hours, even when closed to the public or working off-site, the Records Custodian still has an obligation to respond to OPRA requests upon receipt in due course to the extent possible.

Lastly, Records Custodians shall notify the public via website and/or other methods if circumstances exist which alter the typical OPRA request method of transmission due to the declared state of emergency.

In the event you have specific questions or concerns about your obligations under the law, please contact our office for additional guidance.

 

Tags: business litigation, civil litigation, New Jersey Open Public Records Act, OPRA