Category Archives: OPRA Legislation

“Daniel’s Law” Amends OPRA to Protect Judges

On Nov. 20, 2020, Governor Murphy signed A-1649 into law. Among other things, the bill amends OPRA to render certain home addresses exempt from public access.

Specifically, the new law immediately exempts from access “that portion of any document which discloses the home address, whether a primary or secondary residence, of any active, formerly active, or retired judicial officer or prosecutor.”  A “judicial officer” is defined as an “active, formerly active, or retired federal, state, county, or municipal judge, including a judge of the Tax Court and any other court of limited jurisdiction established, altered, or abolished by law, a judge of the Office of Administrative Law, a judge of the Division of Workers’ Compensation, or a and any other judge of any other court or who handles proceedings established by law who serves in the executive branch.”

It also creates a future exemption that goes into effect in May 2022 (i.e. 18 months after the bill was signed into law). That provision exempts “that portion of any document which discloses the home address, whether a primary or secondary residence” of “any active, formerly active, or retired law enforcement officer.”

This legislation, called “Daniel’s Law,” was passed in response to the horrific attack upon U.S. District Judge Esther Salas that tragically resulted in the death of her son, Daniel. In addition to exempting home address information from OPRA, the new law also makes it a crime to knowingly post, re-post, or publish the home addresses or unlisted phone numbers of judges, prosecutors or law enforcement officers and their families with the purpose to expose them to “harassment or risk of harm to life or property, or in reckless disregard of the probability of such exposure.”

Transparency a Focus at Legislature’s First Police Reform Hearing

On July 15, 2020, the Senate Law and Public Safety Committee held its first public hearing on police reform in New Jersey. The hearing was intended to be a discussion on policing issues in general and no particular legislative bill was before the committee, but police transparency was a frequent topic.

The hearing opened with live testimony from Attorney General Gurbir Grewal, who acknowledged that even after his recent decision to disclose the names of officers who receive major discipline, New Jersey still lags behind the rest of the nation when it comes to providing transparency over the police disciplinary process. Grewal testified:

We are one of a shrinking number of states where police disciplinary records remain shrouded in secrecy, virtually never seeing the light of day. In recent months, I have come to recognize that our policy isn’t just bad for public trust, it’s bad for public safety. And it’s time for our policy to change.

Although he did not embrace any particular bill, such as S-2656, a bill introduced by Senator Loretta Weinberg to make police internal affairs and disciplinary records subject to OPRA, it can be inferred from the Attorney General’s testimony that he may be inclined to support such a bill and believes it that full transparency is the right thing to do. The Attorney General testified:

“[W]hen it comes to the transparency of police disciplinary records, New Jersey needs to end its outlier status and move towards greater openness. We can and should be a national leader on this issue.”

The only way to be a national leader is to embrace full access to actual internal affairs files–all of them, even those that are not sustained. That is indeed what more than a dozen states do, as the Attorney General testified.

The police unions have have already obtained a stay of the Attorney General’s recent directive requiring disclosure of major discipline. Multiple police unions testified against transparency at the hearing. Therefore, the Attorney General’s testimony addressed the fact that legislative action was needed to make internal affairs records public.

The public was invited to submit written testimony in advance of the meeting. Attorney CJ Griffin submitted personal written testimony explaining why the Attorney General’s recent directive fails to provide real transparency and providing a helpful chart that compares New Jersey to other states on the issue of internal affairs access.  Griffin concluded by saying:

“Unfortunately, in New Jersey we are unable to proactively review IA investigation files to root out the complaints that were erroneously dismissed or expose the shoddy IA investigations. Instead, we have to wait until tragic situations occur for IA information to become public. At that point, the damage is already done.

I was not born and raised in New Jersey, so I feel a sense of pride and ownership in having chosen to make this state my home. In that regard, I have bragged to friends and fellow advocates about the areas of law where we lead the nation. But, in this area—police transparency—we are, as the Attorney General recognized, at the “back of the pack.” We must not only catch up to most other states; we must lead.

 

You can read Griffin’s full submission here.

Griffin also recently submitted an amicus curiae brief on behalf of two non-profit law enforcement organizations, opposing the police unions’ lawsuits to stop the Attorney General’s directives to disclose the names of officers who receive major discipline. You can read about that brief here. The Appellate Division will hear oral arguments in mid-September.

An archived recording of the hearing can be viewed on the Legislature’s website. Additional police reform hearings will be held.

OPRA’s Deadlines are Relaxed During States of Emergency

On March 20, 2020, Governor Murphy signed a series of coronavirus-related bills into law. Among them was A3849, which modifies the deadline by which public agencies must respond to an OPRA request during an emergency.

Under normal circumstances, a public agency must respond to an OPRA request as soon as possible and no later than seven business days from the date of the request. The amendment provides that:

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.

In other words, where there is declared emergency, a public agency need not respond during seven business days. Instead, it must only make a “reasonable effort” to respond within seven business days or as soon as it is able to do so.

Those who frequently file OPRA requests know that agencies already frequently fail to comply with OPRA’s deadlines. We have written about about agencies taking multiple extensions before and and we have even sued and obtained rulings finding that certain agencies have engaged in a “pattern and practice” of violating OPRA’s statutory time frames. Frankly, many wonder why this bill was necessary in light of the fact that agencies already routinely take extensions.

In our minds, though, this new bill evidences a very clear legislative intent that agencies should always comply with OPRA’s statutory seven-day deadline and that any “reasonableness” arguments for a delay should be rejected unless there is a declared emergency. We hope the courts and GRC will agree and put an end to agencies automatically granting themselves endless extensions.

To contact us about this blog post or discuss an OPRA denial, email cgriffin@pashmanstein.com or visit the “contact us” tab above.

OPRA Modernization Bill – copying fee problems

Every year, transparency warrior Senator Loretta Weinberg introduces a bill which would modernize and improve OPRA. This year’s bill is S107. Given that Democrats now control the Senate, Assembly, and Governor’s Office, we are hopeful that the bill has a chance of passing.

While the bill overwhelmingly improves OPRA, through a series of blogs we will highlight how some small provisions of the bill that seem non-controversial can actually cause some major problems for requestors.

First topic? Copying costs.

Currently, agencies cannot charge a copying charge to send requestors PDFs of documents. One creative way that agencies try to stall access to records is to think of a way to charge for them. Sadly, S107 will make such conduct perfectly legal.

S107 amends N.J.S.A. 47:1A-5(b) so that “a public agency may charge the fee for each copy made in the process of responding to a government record request made during the redaction process.”  What this means is that if an agency has to print a copy of a record to redact it, it can charge for that copy even if it ends up scanning the record to the requestor in a PDF.

Hypothetical:

John Doe files an OPRA request for a copy of an employee’s one-page pay stub. The Custodian is obligated to redact the employee’s social security number from that document, so she prints a copy of it and redacts it. S107 allows her to charge 5 cents for that record. She emails John Doe and tells him that he has to pay 5 cents before she will email the pay stub to him and that he can either mail in a check or come pay by check at the clerk’s office.

John Doe now has to find his checkbook, write a check for a measly 5 cents, pay 49 cents for a sttamp, and wait 1-3 business days for it to arrive and the Custodian to email the pay stub to him. Or, he can take time off work to go drop off a check during the Custodian’s business hours. That’s an awfully big hurdle to receive a pay stub! It’s not the cost is too much, but the hassle of having to arrange to pay the fee discourages and delays access. But, S107 permits it.

This is not a crazy hypothetical, by the way. Things like this actually happen all the time. The GRC has addressed this issue several times, such as in Galloway Township News and Paff.

Hopefully this provision will be removed as the S107 works its way through committees.