Category Archives: Articles

The Third Exception to OPRA’s Personnel Records Exemption

The third exception to OPRA’s personnel records exemption provides that:

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.

[N.J.S.A. 47:1A-10.]

In Kovalcik v. Somerset Cty. Prosecutor’s Office, 206 N.J. 581, 593 (2011), the Supreme Court has made it clear that this exception does not authorize disclosure of all records that “evidence an employee’s educational background or even that evidence an employee’s participation in educational pursuits generally.”  Rather, the Court held that the exception makes available only records “that would demonstrate that a government employee lacked a required credential and therefore failed to meet the minimum qualifications for the position.”

What this means is that if there is a certain training certificate or license or degree that must be obtained in order to hold a government position (or to receive a promotion), then the public is entitled to know that information.  So, a requestor could seek a copy of a Municipal Clerk’s RMC (Registered Municipal Clerk) license and continuing education certificates, N.J.S.A. 40A:9-133 requires clerks to receive an RMC certificate.  Similarly, if a requestor seeks a list of training courses that a police officer has taken, the agency must produce the list but may redact any courses that are not mandatory.

For more information about this blog post or any other OPRA question, please contact

Exception 2 to OPRA’s Personnel Records Exemption

Last week we discussed Exception 1 to OPRA’s personnel records exemption, which permits you to file an OPRA request for a public employee’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.”  This week, we explore Exception 2.

Exception 2 provides that: “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.”

This Exception has been largely un-litigated and thus the Courts have still not defined the scope of this exception.  In McGee v. Twp. of E. Amwell, 416 N.J. Super. 602, 616, 7 A.3d 785, 793 (App. Div. 2010), the Appellate Division held that emails about an employee were “personnel records” even though they were not filed in a personnel folder and that Exception 2 would permit the employee to request them because she would be an “individual in interest” who could authorize the release.

Regarding the phrase, “personnel or pension records of any individual shall be accessible when required to be disclosed by another law,” we will explore this portion of Exception 2 next week when we explore Exception 3 because the two exceptions work closely together in some instances.

For more information about this blog post or any other OPRA question, please contact

How Soon Must Government Records Be Available to Requestors?

Section 5 of OPRA is clear that government records must be available “as soon as possible.” It then provides an outer time limit for public agencies—records must be produced as soon as possible, “but not later than seven business days after receiving the request.”  Unfortunately, fewer and fewer public agencies comply with these rigid timelines.  Most agencies produce records on the 7th business day, even though they are supposed to be available “as soon as possible.”  And many agencies have moved to automatically taking an extension of time for each and every OPRA request, even requests that would require minimal time and effort to fulfill.  The New Jersey Supreme Court has stated that the purpose of OPRA is to ensure “swift access” to government records, but the actions of many public agencies have made obtaining government records a drawn out, lengthy process.

In enacting OPRA, the Legislature declared that some records should be so readily available that the 7-day outer limit is not applicable at all.  Some records, such as budgets and contracts, must be made available “immediately.”  Simply put, any person should be able to walk into city hall (or send an email to the city clerk) and “immediately” receive a copy of the city’s budget, contracts, vouchers, etc.  Unfortunately, this is not always how it works.

As detailed in an article by The Record, a records requestor went to the Clifton Board of Education to obtain a copy of, among other records, a contract between the BOE and a tree cutting service.  Initially she was told that she would have to wait 7 business days.  Because she wanted the contract for the BOE meeting the next night and knew her rights, the requestor demanded that she was entitled to “immediate” access to the contract.  Ultimately, the BOE let her look at the contract, but would not let her take pictures of it with her phone’s camera or have an actual copy of the contract. Even though a copy of the contract had already been made, the BOE’s employee tore that copy up and instead told the requestor that the contract would be released “within 7 business days.”   The requestor filed a complaint with the Government Records Council,* alleging it is a violation of both OPRA’s “immediate access” provision.  It is also clear that the record was not produced “as soon as possible.”

For more information about this blog post or any other OPRA question, please contact

*Pashman Stein represents the requestor in this case.


A Public Agency Must Tell You What Records Exist

Pursuant to Section 5 of OPRA, a public agency must state the “specific basis” for denying access to government records.  Those who request records frequently, however, know that it is not uncommon for a public agency to issue a blanket denial when you’ve requested a volume of records, rather than telling you specifically why each requested record is being withheld.  Yesterday, a court awarded attorneys fees to Pashman Stein in litigation against a public agency who had refused to tell Plaintiff John Paff whether there were records responsive to his request and instead kept making blanket assertions that “any such records” would be exempt as internal affairs records.  You can read more about the decision in Paff v. Township of Stafford on Mr. Paff’s blog.

In making a blanket assertion that any and all records are exempt from access, a public agency not only violates the plain language of Section 5 of OPRA, but also deprives the requestor the ability to determine whether or not he might be entitled to the records under OPRA or the common law right of access.  It also places the requestor in the position of filing suit and then finding out that the records did not even exist in the first place.   In such instances, our courts have still awarded fees to requestors because the public agency’s negligence in not telling the requestor that the record did not exist essentially lured the requestor into litigation.

For example, in Kelley v. Borough of Riverdale, MRS-L-524-14 (Law Div. April 11, 2014) the plaintiff had requested numerous emails that were sent to and from municipal employees, including the custodian regarding litigation.  The custodian responded that plaintiff requested “court records that I cannot and do not have authorization to send you.”  Plaintiff sued.  In opposition to suit, the agency responded that the records, in fact, did not exist and that “as there are no documents to be ‘disclosed,’ this matter should be dismissed.”  The trial court still found an OPRA violation and awarded the plaintiff attorney fees, stating that had the agency not been negligent in giving the requestor an incorrect response to his OPRA request he would not have sued.

Paff v. Stafford and Kelley v. Borough of Riverdale are just two examples of a court finding an OPRA violation for a public agency’s negligence in failing to properly respond to an OPRA request.  This negligence not only deprives an OPRA requestor of the ability to access whether the denial of access was lawful, but also ultimately results in an expenditure of taxpayer funds when the requestor sues.

For more information about this blog post or any other OPRA question, please contact

Sunshine Week: A Win in Helmetta for the Wronkos

It’s Sunshine Week– a national initiative to promote a dialogue about the importance of open government and freedom of information.  This week on the blog we will feature some of Pashman Stein’s clients who are open government activists or journalists and highlight some proposed changes to the New Jersey Open Public Records Act (OPRA) that are currently pending in the Legislature.

Today we feature Collene Wronko, an open government and animal rights activist from Middlesex County.  Ms. Wronko and her husband, Steve, have led a group of dedicated activists who have used OPRA to shine light on the abusive conditions at the Helmetta Regional Animal Shelter.  Not all of the records were easily obtained, however, and the Wronkos hired CJ Griffin last fall to file a suit on their behalf.  Last week, Superior Court Assignment Judge Travis L. Francis issued a decision finding Helmetta in violation of OPRA on numerous counts and compelled them to remove redactions from hundreds of animal intake records and release numerous other records that it had unlawfully withheld.

Interview with Collene Wronko:

  1. When and how did you initially become interested in the open government movement?

I initially became interested in the Open Public Records Act, when I was trying to prove that there was abuse at the Helmetta Regional Animal Shelter.   I was able to use the Open Public Records Act (OPRA) to get records that would show how incompetently the shelter was run, but the Borough itself made it very difficult to get the records.  My requests were repeatedly denied or I was given negligent responses that did not contain all of the records I had requested.  Ultimately, OPRA helped me get the word out so that the shelter situation was featured on Kane in Your Corner and the New Jersey Society for the Prevention of Cruelty to Animals (NJSPCA) raided the shelter, took it into receivership, and filed animal cruelty charges against its directors.

  1. What types of government records or open government issues interest you most?

I am most interested in records surrounding Municipal Shelters, NJSPCA, and misconduct of police officers in small towns, as well as how council are running small towns and if they are running them with a transparent government or a back door government.

  1. How many OPRA requests do you file a year? How many times would you estimate the public agency violates OPRA? Of those, how many do you actually litigate?

In 2014, I filed approximately 125 requests.  I would say at least 100 of those requests had some sort of violation within the response.  Most we handled with a quick note from me or my attorney, but there approximately a dozen or so that we had to sue on.  The case against the Borough of Helmetta was quite large and included numerous violations, but there were dozens and dozens more by them that we did not include in the lawsuit for various reasons.

  1. If you could persuade the Legislature to amend OPRA, what would be your top suggestions?

The one thing I would like to see changed are Internal Affairs investigation reports for all types of police.  I do not believe keeping these public records safeguarded from the general public is “transparency”.  If anything, we should want to know what the police officers are doing that would cause citizens to file complaints and to see if those complaints are repetitive.  Right now, it is very difficult to get those records.

For more information about this blog post or any other OPRA question, please contact

Using New Jersey’s Open Public Records Act as a Litigation Tool

Published in New Jersey Corporate Counsel’s Newsletter, December 2014 Issue

Those who frequently litigate are aware that the discovery process often involves numerous components, including interrogatories, document demands, subpoenas, depositions, and requests for admissions.  In addition to these traditional tools, New Jersey offers an additional discovery mechanism that is often overlooked:  the Open Public Records Act (“OPRA”), N.J.S.A. 47:1A-1, et seq.  When a dispute involves a public agency, public property, or public resources, OPRA can be an important information gathering tool, both where a lawsuit has already been filed and when a party is simply gathering facts necessary to draft the complaint and initiate the litigation.  Thus, OPRA may be a useful litigation tool for construction companies, real estate development companies, financial lenders, insurance companies, and any other entities that deal with public agencies, public property, or public resources.

Our courts have found that it is perfectly acceptable to use OPRA in lieu of written discovery requests or subpoenas and there are several benefits to doing so.  First, the recipient of an OPRA request must respond much more swiftly to that request than to a subpoena or discovery demand.  The public agency must respond within a mere seven business days, whereas the thirty-to-sixty day deadline for responding to traditional written discovery is often missed by litigants and discovery is often not produced until a motion to compel is filed.

Second, the New Jersey judiciary’s discovery rules require that a party demonstrate that the documents or information requested in written discovery are relevant to admissible evidence, but a request for records under OPRA requires no such showing.  Government records must be produced within seven business days of an OPRA request, unless the record can be categorized under one of OPRA’s 24 narrow exemptions (such as personnel records, criminal investigatory records, certain security-related information, etc).

Finally, OPRA contains a mandatory fee-shifting provision if a court finds that a public agency unlawfully denied access to a record.  Thus, while companies might pay outside counsel’s hourly rates to assist in drafting the OPRA requests and litigating to obtain access to records, those companies will be reimbursed a “reasonable” attorney fee if the court finds that the public agency violated OPRA.  In contrast, if an adversary fails to properly respond to a discovery request and the court grants a motion to compel, the decision to award attorneys’ fees is discretionary and rarely occurs in practice.

When using OPRA as a litigation tool, it is important to work with an outside counsel who is well-versed in crafting OPRA requests because a valid OPRA request is markedly different from a typical discovery request.  Discovery requests are often broad and require the adversary to analyze information, make computations, and answer specific questions.  A valid OPRA request is the opposite–it is not simply a general request for information or a broad category of records.  A requestor generally cannot seek an entire project file, but instead must identify the specific records within the file that it wants to receive.  A valid OPRA request does not require the records custodian to perform any research or analysis, nor ask the custodian to calculate data or answer questions.  To be upheld, an OPRA request must seek easily identifiable records by name, such as contracts, budgets, bills, meeting minutes, logbooks, emails, RFQs, vouchers, check registries, or correspondence.

In-house counsel who draft OPRA requests should keep these tips in mind:

1.    Make sure that your request seeks a specific government record and not information. Invalid Request: “Please state Employee X’s annual salary.”  Valid Request: “Please provide copies of Employee X’s most recent payroll record.”

2.    Keep your request narrow in date and scope.  Invalid Request: “Please provide any and all documents relating to Town X’s contract with Company Y.” Valid Request: “Please produce the following records relating to Town X’s contract with Company Y for the construction of the new school:  the RFP, quote or bid submitted by Company Y, Town X’s resolution awarding Company Y the contract, and all bills/invoices submitted from Company Y from January 1, 2014 to present date.”

3.    For copies of email correspondence, you should identify the date range, subject matter, and sender and/or receiver in requests. Invalid: “Please provide all emails to or from the Mayor for Year 2014.”  Valid: “Please provide every email to or from the Mayor received or sent in January 2014 regarding the township’s budget.”

4.    Remember to indicate the method by which you wish to receive the records. Do you wish to receive PDF copies of records via email? Do you want hard copies, for which you will incur a copying charge of 5 cents per a page? Or, do you want the document in an electronic format such as a spreadsheet?  A public agency may charge for converting certain records into another medium, but it may only charge for the “actual costs” it incurs.

Using these general guidelines will help ensure that the records custodian does not deny the request as invalid.

As mentioned above, if a request is valid, then the public agency has seven business days to respond and that response must be in writing.  The response should either enclose the requested records, indicate why access to specific records is being denied, or request an extension of time to comply with the request if the request was voluminous.  If the records contained confidential information (such as social security numbers, attorney-client privileged information, etc.), the public agency may redact the protected information but must grant access to the rest of the record.  The public agency also must indicate why the redactions were made and redact as narrowly as possible.

To challenge a public agency’s response to an OPRA request, the requesting company should file a Verified Complaint and Order to Show Cause (OTSC) in the Superior Court.  While OPRA also allows requestors to file a challenge before the Government Records Council (GRC), the Superior Court is a much faster route for resolution of such disputes.  Generally, the OTSC return date is set four to six weeks after the initial filing of the Verified Complaint.  Thus, a company using OPRA to obtain discovery could theoretically file a request, receive a denial, file litigation, and obtain a court order compelling production of the requested government records before a response to traditional written discovery would have even been due.  Given this efficiency, companies should be aware of the benefits of OPRA and consult experienced practitioners to make the best use of this underutilized litigation tool.

For more information about this blog post or any other OPRA question, please contact


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.