NJ Legislature Considers OPRA Amendment to Limit Access to Personal Information and Alter Fee-Shifting Provision
Mar 2, 2017 | Written by: Share|
In February 2017, New Jersey Assembly Bill 4532 was introduced and subsequently voted out of the State and Local Government Committee. The bill would amend the Open Public Records Act (OPRA) by exempting certain personal information from disclosure and narrowing the circumstances under which a successful litigant can be awarded attorney’s fees.
With two new provisions, the bill would further protect personal information from disclosure. First, A4532 makes it clear that a person’s address, telephone number, and email address are exempt from disclosure. Case law has indicated that such information is not subject to OPRA, but there has never been clear language included in OPRA on this issue. The Government Records Counsel (GRC) has consistently held that personal telephone numbers, home addresses, and email addresses are not subject to disclosure and should be redacted from documents released under OPRA. Smith v. Dept. of Corrections, GRC Complaint No. 2004-163 (June 2005) (holding that both listed and unlisted personal telephone numbers could be lawfully redacted); Wolosky v. Parsippay-Troy Hills, GRC Complaint No. 2010-317 (March 2012) (holding that telephone numbers and email addresses on OPRA request forms could be lawfully redacted). Therefore, this bill probably will not change how and when municipalities redact home addresses, emails, and telephone numbers.
Second, A4532 explicitly excludes from disclosure a “personal government record.” A “personal government record” is defined as “a record that consists of or pertains solely to a pet or home alarm system permit, license, or registration. Currently, case law requires that the municipality perform a balancing test when determining whether to release documents containing the home addresses of residents, such as a list of pet license holders. Bernstein v. Bor. of Ho-Ho-Kus, GRC Complaint No. 2005-13 (July 2005) (denying access to a list of pet license holders where the plaintiff admitted that he would use the list for commercial solicitation); Avin v. Bor. of Ridgewood, GRC Complaint No. 2004-178 (March 2005) (holding that a commercial safety alarm company was not entitled to obtain a list maintained by a municipality of homeowners that had applied for an alarm permit because such would result in unsolicited contact between residents and the company); Renna v. Cty. of Union, No. A-1811-10T3, 2012 WL 517490 (N.J.Super. Ct. App. Div. Feb. 17, 2012) (allowing access to a list of residents receiving a senior citizen newsletter by a community watchdog group looking to distribute their own newsletter); Does v. City of Trenton Dep't of Pub. Works, 565 F. Supp. 2d 560, 562 (D.N.J. 2008) (enjoining municipality from disseminating list of employees of a government contractor under OPRA to a union group). Therefore, a municipality was left to subjectively determine if a requestor was entitled to such information. A4532 removes this subjectivity from the decision and provides municipalities with more guidance. However, this amendment has been criticized because such lists can often be valuable tools for public advocacy groups to disseminate information.
Lastly, A4532 prevents the award of attorney’s fees to a litigant under OPRA where the “court or agency head finds that the decision to deny access was reasonable and made in good faith after due diligence.” Oftentimes, the GRC and the Courts disagree about the application of OPRA’s exceptions and the definition of a “government record.” A municipality is then left to choose which directive to follow. Additionally, there are “gray” areas of OPRA law that have not been definitively decided by the Courts or the GRC. A municipality is then left to make a decision without adequate guidance. In both these cases, a municipality is left vulnerable for paying a litigant’s attorney’s fees when the municipality’s decision was based upon sound judgment and good faith. Therefore, a municipality will not be punished for denying an OPRA request based upon inadequate and inconsistent case law.
Proponents of OPRA have criticized this amendment, stating that it will deter citizens from litigating OPRA cases of first impression. However, there are indications from the Legislature that the bill may be amended to limit the altered fee-shifting provision only to cases involving “personal government records.”
There is no indication of when further action will be taken on the bill. However, if enacted, it will have a great effect on how municipalities respond to OPRA requests.