Understanding Your NJ Government: OPRA| New Jersey’s Public Records Law

The eighth article in an ongoing series intended to help NJ residents, especially students, understand their local and state government.

New Jersey’s Open Public Records Act (OPRA) allows the NJ residents access to important documents and is the backbone of public accountability in NJ. Through OPRA residents can access vendor agreements, emails about public business, budgets and a whole slew of paper that tells the real story.

New Jersey’s OPRA law was, until recently, one of the strongest transparency laws in the country. The Legislature passed a significant overhaul, signed into law in June 2024. These amendments, now known as P.L. 2024, c.16, significantly changed how requests must be submitted, how agencies may respond and the public’s options when their requests for records are denied.

NJ21st has used OPRA to fact check government officials, expose a whole host of problematic government decisions and shine light on ethics violations and illegal actions.

Two Paths of Access for Public Records – OPRA and the Common Law Right of Access

New Jersey has two systems for obtaining public records: OPRA and the Common Law Right of Access. They overlap but they have different rules and advantages.

OPRA is a codified pathway that outlines what counts as a government record, sets a seven business day response deadline, outlines exemptions, lists fees and creates appeal pathways through both the courts and the Government Records Council.

The Common Law Right of Access predates OPRA and was not eliminated by the 2024 amendments. It is based on case law – almost more intuitive.

Under the common law system courts weigh the public interest in disclosure against confidentiality concerns. Many of the elements required under OPRA in a request do not exist in Common Law and records exempt under OPRA may still be released under common law.

The best approach when making a request is to do so under both OPRA and the Common Law Right of Access.

What Counts as a Government Record

Under OPRA, a government record includes any information made, maintained, kept on file or received by a public agency in the course of official business.

• Budgets, audits and financial reports
• Contracts, RFPs, bids and invoices
• Emails involving public business, even when sent through personal accounts
• Reports, memos, studies and consultant documents
• Meeting agendas, minutes, packets and supporting materials
• Calendars and schedules created for official purposes
• Payroll, overtime and many personnel-related financial records

Some items are partially or fully exempt from OPRA including:

• Criminal investigation records
• Student records
• Some personnel and disciplinary files
• Some items that fall under cybersecurity and network information
• And under the 2024 amendments, personal identifiers

The basic rule that records are open unless a clear exemption applies remains in place.

What Changed in 2024

The 2024 OPRA amendments were the most sweeping changes since OPRA was enacted and included:

• A new OPRA request form created by the Government Records Council
• The ability for agencies to reject email requests that do not follow the required fields in the form (we have already encountered instances where this has been abused).
• Exemption and redaction categories were expanded
• Commercial requests have different fees and timelines
• Revised attorney fee standard that no longer guarantees fees for requesters who win in court. This single provision significantly weakened NJ’s OPRA law and put remedies for improper redaction out of reach for many working class residents.
• A more narrow appeal window from 60 days to 45
• Clearer authority for agencies to deny requests that come across as broad research projects

How to File an OPRA Request Under the New Rules

If you’re submitting OPRA request by email make sure it mirrors the fields in the official Government Records Council OPRA form.

To avoid delays or denials, include the following:

• Your name and contact information
• A clear description of the records you are requesting
• Specific date ranges, names or subjects
• Your preferred delivery method (email, download or paper copies)
• A statement that the request is not for a commercial purpose
• The required certification that you are not requesting records containing criminal history information for an improper purpose
• A statement that you are requesting records under OPRA and under the Common Law Right of Access

or

Use the form adopted by the agency.

The custodian must respond to your request within seven business days. A custodian may:

• Grant the request
• Deny it with a specific legal citation
• Request clarification
• Ask for an extension

Extensions must now be explained and fall within the categories allowed by the 2024 amendments which include:

• If the request is for a commercial purpose the deadline moves to 14 business days
• If the records are archived, stored off-site or require extra work to access because of how or where they are stored
• During a declared state of emergency or public health emergency. Normal deadlines may be suspended but agencies still need to make a reasonable effort to respond as soon as possible

Redactions Under OPRA

A redaction is when an agency provides a record but blacks out information that is legally exempt from disclosure. OPRA requires agencies to release as much of the record as possible, even if certain parts must be removed. Redactions must always be limited, specific and legally justified.

Allowable Redactions Include:

• Personal identifying information (Social Security numbers, driver’s license numbers, etc.)
• Student records and education information protected by state and federal laws
• Criminal investigation details that are specifically exempt from release
• Certain personnel and disciplinary information
• Information protected by attorney-client privilege or attorney work product
• Security and cybersecurity information, including system configuration details
• Information covered by medical, mental health or confidential health statutes
• Newly expanded technical and authentication information added in the 2024 amendments
• Portions of records that are advisory, consultative or deliberative only while the record is pre-decisional.

Agencies often over-redact but OPRA puts strict limits on what can be withheld. They may not redact:

• Entire documents unless every single part is legally exempt
• Public portions of a record simply because some parts are sensitive
• Information that is embarrassing, politically inconvenient or critical of the agency
• Records that reflect final decisions, final contracts or final actions
• Executive-level summaries, factual data or materials actually relied upon in making a decision
• Communications about public business solely because they were sent through personal accounts

Every redaction must be explained and accompanied with:

• A clear description of what type of information was removed
• The specific OPRA exemption or legal authority that justifies the removal
• A format that allows the requester to see where the redaction occurred, usually by black bars or brackets

A custodian cannot simply remove information without explanation or issue blanket statements like “redacted for privacy.”

Redactions must be tied to specific legal exemptions.

Requester Rights

A requester has the right to:

• Challenge improper or excessive redactions
• Request an unredacted version through the Common Law Right of Access if OPRA does not require release
• Receive a Vaughn-style index or explanation list in complex cases
• Appeal redactions through the Government Records Council or Superior Court

The purpose of redactions is to protect legitimate privacy or security interests while still allowing for transparency-redactions are meant to be the exception, not the default. In other words they are simoply there to razor out what should be legitimately withheld so that the public has access to the rest of the record.

Fees

Agencies are limited in what fees they are allowed to impose. Fees are controlled by statute and remain limited in several important ways.

Agencies CANNOT:

• Charge for staff time to search for, review or redact records unless a legally justified special service charge applies
• Charge a special service charge unless the request is unusually large, requires extensive time or technology or requires a substantial amount of clerical or professional work
• Charge added fees for routine electronic records. PDFs, spreadsheets, agendas and contracts cannot trigger added fees
• Charge above the standard per-page copying caps that apply only to printed paper copies
• Impose new fees simply because a request is inconvenient, politically sensitive or critical of the agency

Commercial purpose fees apply only when the requester is actually seeking records for a commercial reason. Most residents, journalists and civic groups are not commercial requesters.

If an agency attempts to impose a special service charge it must do so in writing and state the legal basis for the charge. Many agencies have historically attempted to stretch realities in order to impose fees as a disincentive.

Service charges can only be applied if the request is unusually burdensome or requires significant professional or technical work and must be tied to the actual, direct cost of the staff needed to fulfill the request.

Agencies are not allowed to inflate charges or use them to discourage requests.

Lastly, you have the right to decline a special service charge and narrow or modify the request instead.

It should be noted that the 2024 amendments created a rebuttable presumption that a special service charge is reasonable. This means if an agency imposes a fee, the requester now carries the burden of proof in an appeal to demonstrate that the charge is unreasonable or excessive. Again… another barrier.

If Your Request Is Denied

You have two routes for appeal: the Government Records Council or Superior Court.

The Government Records Council is free but often very slow due to continued backlogs and understaffing.

The Superior Court process is faster. Under the new law attorney fees are awarded only if the agency acted unreasonably, knowingly or in bad faith. This shift from mandatory fee-shifting to a discretionary standard significantly reduces the financial risk for agencies with tax-funded attorneys that choose to fight access and increases the burden on requesters seeking legal representation.

Although the 2024 amendments (P.L. 2024, c.16) narrowed access in some areas, OPRA remains the public’s most important transparency tool.

If you need assistance with an improper denial NJ21st contributors often work with Attorney Walter Luers.

Reporting We’ve Published Made Possible By OPRA