Monthly Archives: September 2014

The Ongoing Investigation Exemption

Often, public agencies deny requests for records relating to misconduct or crime and claim that the records are part of an “investigation in progress” and therefore not subject to OPRA.  It is true that OPRA does provide an exemption for ongoing investigations, but it is important to know how this exemption is applied.

First, OPRA specifically states that ongoing investigation does not apply to records that were “open for public inspection, examination, or copying before the investigation commenced.” N.J.S.A. 47:1A-3a.  This means that a video recording that recorded a crime taking place, or audio of a 911 call in which the crime was reported, should not be subject to the ongoing investigation because both are government records that were created before any investigation began.  Not every record that is tied to an investigation is exempt simply because an investigation has begun.  For example, if the prosecutor’s office begins an investigation into possible embezzling of funds from a public agency’s bank accounts, the bank statements of those accounts are still available to the public because they were accessible public records before the investigation began.  New reports and records that were created directly as part of the investigation would not be subject to OPRA, however.

Second, the exemption is not automatically applied whenever a record is created after an investigation has commenced – access may only be denied “if the inspection, copying or examination of such record or records shall be inimical to the public interest.” The burden rests upon the public agency to prove that the exemption applies and our courts have held that a record does not “become cloaked in confidentiality simply because the prosecutor declares it so.”

And finally, pursuant to OPRA, certain information concerning a criminal investigation and the circumstances surrounding an arrest are available to the public for immediate access, “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.” N.J.S.A. 47:1A–3(b). These records must be released unless the public agency can demonstrate that release of such information would jeopardize public safety or the investigation.

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.

Must I Use the Agency’s Official Request Form?

Most public agencies have adopted official OPRA Request Forms that they place on their websites.  For frequent requestors, filling out the official form each and every time a request is made can be time consuming so many opt to send their requests in the body of an email to the records custodian.  According to New Jersey case law, this is perfectly acceptable.  In Renna v. County of Union, 407 N.J. Super. 230 (App. Div. 2009), the Appellate Division held that no public agency may deny an OPRA request simply because the requestor did not use the agency’s official OPRA Request Form.  However, a requestor still must be careful to provide the agency with enough information to properly process the request.  We recommend the following template when submitting your request via email:

Please accept this e-mail as my request for government records in accordance with the Open Public Records Act (OPRA) and the common law right of access. Please respond and send all responsive documents in electronic format to me via e-mail at your name @ your address.com.

Records requested:

[Insert your records request here.]

I would appreciate if you would acknowledge your receipt of this e-mail.

Thank you for granting access to these records within seven business days.

Your Name
Your Address
Your Phone Number
Your Email Address

If you wish to receive the documents in some other format, or wish to pick up hard copies, you must indicate such.

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.

How To Use NJ Open Public Records Act To Get The Scoop

Published by Media & Entertainment and New Jersey Law360

Elected officials and government employees are often overly cooperative with media when the subject matter involves an issue near and dear to their hearts, advances their political talking points, or is otherwise beneficial to them. But, when the media is attempting to uncover scandal, government waste or potential wrongdoing, journalists often find that their requests for interviews and information are denied and that the elected official suddenly has “no comment.”

For the rest of the article, please click on the Link.

May I Request Public Employee’s emails?

Many clients ask whether the emails sent to or from a public employee or public official are subject to the Open Public Records Act (OPRA).  The answer is yes – if the email would be considered a “government record,” if it had been sent via snail mail or some other method of correspondence, then it is subject to OPRA. Even if the public officials or employees are using a personal email address or their personal computer, the emails are subject to OPRA if they are discussing the public agency’s official business.  When making a request, we therefore recommend that you seek both emails, from both the public employee’s official work email address as well as their private email address.

Though there is very little guidance from the courts on this issue, the GRC has held that a valid request for emails requires the following:

  • Date range. Note that the range must not be overbroad—requests for months or years of emails may very likely be held to be too broad.
  • Subject matter. We recommend stating the subject matter and indicating that you wish the custodian to search both the subject line and the content of the emails.
  • Identity of the Sender or Recipient. You do not need to know both the sender and the recipient.

An example of a request likely to be found valid is:  “Copies of all emails to or from Mayor Jones (using his official township email address or his personal email address) from August 1 to August 15, 2014 regarding the Fourth of July Parade (please search both the subject line and body of the email).”

Until a New Jersey court rules differently, we recommend putting all three of the above items in a request for emails.

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.