Category Archives: OPRA Q&As

Are Facebook Posts and Other Computer Records Subject to OPRA?

As the number of public agencies with a social media presence grows, questions arise regarding whether the content of the social media sites is a “government record” subject to OPRA.  We believe that it is.

OPRA defines government records very broadly and includes “information stored or maintained electronically.”  This should cover posts made on a public agency’s official Facebook page, as well as information such as web browser history on computers used by public employees during their official course of business. Computers are, in other words, electronically storing everything a public employee does during the course of his or her day and that activity creates government records – be it posting on a Facebook page or entering data into budgeting software.  At least one court has held that “metadata” is subject to OPRA.

The difficulty, however, is how to gain access to such information.  Though all government records should be retained and public agencies should go through the proper process for disposing such records, employees tend to treat data with less care than hard copy records.  So, electronic records are often deleted and may not always be retrievable from the server.

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

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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 cgriffin@pashmanstein.com.

Public Employees Cannot Escape OPRA by Using Personal Email Accounts

News broke this week that Hillary Rodham Clinton exclusively used her personal email account to conduct government business while she was Secretary of State.  Unfortunately, this practice occurs quite frequently at the local levels of government and it has the potential to undermine government transparency, as it allows public officials to conduct public business behind closed doors. New Jersey’s Open Public Records Act (“OPRA”) is broad enough, however, to require such emails to be produced.

OPRA defines a “government record” as any document (including electronically stored information, such as email) “that has been made, maintained or kept on file” in the course of a public official or public employee’s “official business.”  This means that the right to access an email via OPRA is based on the content and nature of an email itself, not the specific account from which the email was sent. In other words, if a public employee sends an email in which public business is discussed then that email is subject to OPRA regardless of whether it was sent from the public employee’s official business account or from a personal account such as Gmail or Yahoo.

There are complications, of course, which is why public agencies should adopt policies that require all public business to be conducted via the agency’s official business accounts. When an OPRA request is submitted for emails, a Records Custodian can easily ask the IT Department to search the public agency’s server to find responsive emails—even those that have been deleted from the employee’s inbox.  It is much more difficult, however, to gain access to personal email accounts and the Records Custodian generally must rely upon the employee to search his or her own personal email account and produce all responsive emails.  At worst, this opens the door for potential corruption because the Records Custodian has no control over what was produced. At best, it is probable that not all responsive emails will be produced simply because the public employee likely deleted emails from the personal account over time and they are generally recoverable on a private server like they are on the public agency’s official email server.

When making an OPRA request, ask for emails from both the official government account and any personal email account so that the Records Custodian knows that both must be searched.  When you receive a response, clarify with the Records Custodian that any personal accounts were also searched.

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

Can a Public Agency Charge for Records?

Whether a public agency can charge for records provided in response to an OPRA request depends on the circumstances.  There are important guidelines to remember.

  • Electronic copies of records should ordinarily be free of charge, so most requestors seek them in that format. When making your request, simply ask that the records be emailed to you.
  • If a requestor wants a hard copy of a record, the public agency may charge 5 cents per letterhead size copy and 7 cents per legal paper size copy. A public agency may not charge more unless they can prove that their “actual costs” are higher.
  • If the requestor wants the government record in a format not already maintained by the public agency, the public must convert the record to that format. If the conversion requires a substantial amount of manipulation or programming by IT, the public agency could charge a “special service charge.”  This special service charge also must be the “actual cost” to the agency, i.e. the cost of the labor needed to perform the conversion.  It is rare that this service charge applies and the public agency must first contact you to advise what the charge will be and give you the opportunity to object.
  • In all instances, the public agency may not charge more than the “actual cost” of producing the record. So, for example, if you request an audio tape of a public meeting, the public agency can only charge you the cost of the tape. The public agency cannot make a profit off of your request.
  • Finally, victims of crime can request copies of the police reports at no cost.

Be Careful Citing Statutes in OPRA Requests

It is common that a requestor will seek a record that is required by law to be made.  Thinking that she is being helpful to the Records Custodian and making her request clearer, the requestor will often cite the particular law when making her request.  Requestors who do this should be careful, as Records Custodians will often deny the request on the basis that it requires them to perform “research.”

A good example of this issue occurred in the case Bart v. Passaic County Public Housing Agency, 406 N.J. Super. 445 (App. Div. 2009).  There, the requestor (Bart) sought “signs currently posted in conformance with N.J.S.A. 47:1A-5(j),” which is a provision of OPRA that requires the public agency to post a sign telling requestors of their right to appeal the denial of an OPRA request.

The County responded and provided documents, but not the signage that Bart was seeking.  He filed a denial of access Complaint with the Government Records Council (GRC), which held that there was no violation because the request was invalid.

On appeal, the Appellate Division affirmed the GRC’s decision. The court held that a requestor must identify the records sought with “specificity” and that Bart’s request would have required the custodian to perform legal research to determine exactly what type of sign N.J.S.A. 47:1A-5(j) required in order to provide a response to Bart’s request.

It is important to remember that custodians are only required to search their files, not perform research.  Even if a requestor feels that she is being more helpful by citing to a statute, or attempting to prove that the record must exist, be careful in citing to a statute. Rather, describe the document specifically, stating what type of record it is and what type of information it contains. If the custodian denies the request or says that such a record does not exist, then it would be proper to respond to the custodian, cite the statute, and state that the record therefore must exist.

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

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.

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.

Using OPRA as a Litigation Tool

When a dispute involves a public agency, public property, or public resources, the Open Public Records Act (OPRA) can be an important information gathering tool, whether a lawsuit has already been filed or a party is simply gathering facts necessary to draft the complaint and initiate the litigation. Thus, OPRA is frequently used as a litigation tool by those who do business with public agencies or those who purchase or lease public property, such as construction companies and real estate developers.

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 in doing so.  First, a response to an OPRA request is due much faster than a response to a subpoena or discovery demand. The public agency must respond within a mere seven business days.  Second, the judiciary’s discovery rules require that a party demonstrate that the documents requested are relevant to admissible evidence, but a request for records under OPRA requires no such showing.  Any request for a government record must be honored unless one of the 24 narrow exemptions applies.

When using OPRA as a litigation tool, it is important to hire an attorney who is well-versed in crafting OPRA requests because a valid OPRA request is written much differently than a typical discovery request.  As discussed before on this blog, a valid request must seek an identifiable record and not simply a general request for information or a broad category of records.  A valid request does not require the custodian to perform any research or analysis, nor ask the custodian to calculate data.  It instead simply asks for easily identifiable records, such as contracts, budgets, bills, meeting minutes, logbooks, RFQs, vouchers, or correspondence.

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

So You Were Denied Access – What’s Next?

Per OPRA, public agencies must respond to a request for records within seven business days. But what do you do if the government fails to respond (a deemed denial) or unlawfully refuses to grant access to the records?

The best course of action is to immediately speak to an attorney, who can work with you to gain access to the records. This frequently requires a lawsuit filed in Superior Court.  The most important thing to remember is that your action must be filed within the statute of limitations, which is 45 days. The process for filing in Superior Court is as follows:

  • A Verified Complaint and Order to Show Cause is filed
  • The judge will review and sign the Order to Show Cause. It sets a briefing schedule and a hearing date.
  • The pleadings are then served upon the defendants (public agency and the custodian of records )
  • The defendants will submit their answer and opposition
  • Plaintiff has an opportunity to file a reply brief
  • A hearing is held, wherein the judge will hear arguments from both sides. For simple cases, the judge will usually enter a ruling that day. More complex cases may require a little more time for an opinion to issue. In rare circumstances, the court may allow for discovery (interrogatories, depositions) to occur.
  • If the plaintiff is declared a prevailing party, it can file a fee application asking the Court to order the defendants to pay plaintiff’s counsel fees and costs of suit.

Again, the most important thing to remember is that there is a very short timeline for filing the initial Verified Complaint – 45 days from the date your request was denied (or, if the agency fails to respond, the date the response was due).

For more information about this blog post, please contact cgriffin@pashmanstein.com.