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Archive - Legal Hotline - Access to Public Records


CAUTION: Because the law is constantly evolving, it is important before relying upon any opinion on this website that you check with the hotline counsel to ascertain whether or not there has been any subsequent change or supplementation to the law since the date of the opinion.

Answers provided by NJPA's Legal Counsel.

 

NJPA Access to Public Records Archives

 

Nov. 25, 2003

Question:
Are documents related to contract negotiations, for example, a consultant’s report prepared for the negotiations, available to the public?

Answer:
No. The Open Public Records Act specifically exempts contract negotiation materials.

Nov. 3, 2003

Question:
If a record is exempt from disclosure under OPRA, can a custodian nonetheless release it to the public?

Answer:
Yes. OPRA sets the minimum information that must be disclosed. A custodian may release additional information at any time.

Nov. 3, 2003

Question:
Are police reports open to public inspection?

Answer:
Police reports that are not “criminal investigatory records” are open under the Open Public Records Act. “Criminal investigatory records” are those records that are “not required by law to be made, maintained or kept on file” but are “held by law enforcement agency” and “pertains to any criminal investigation or related law enforcement proceeding.”

Oct. 31, 2003

Question:
Does the Open Public Records Act permit the newspaper to find out why an individual was fired from a public position?

Answer:
Under OPRA, specifically NJSA 47:1A-10, the date of separation and the reasons therefore are public information, accessible to the newspaper.

Oct. 27, 2003

Question:
The local police refused to release information over the weekend as to an arrest for a stabbing that occurred on a Friday. Is this permissible?

Answer:
No. Under the Open Public Records Act, the police must release the basic information as to crimes and arrests within 24 hours of the request “or as soon as practicable.” The fact that the crime occurred over the weekend does not permit the police to withhold the information until the next business day.

Oct. 10, 2003

Question:
Are police reports open to public inspection?

Answer:
Some police departments consider police reports to be criminal investigatory reports which may be withheld from the public.

Sept. 15, 2003

Question:
Is the municipal budget available for public inspection once it is introduced even though it may later be revised?

Answer:
Yes. Once the budget is prepared, it is a government record under OPRA and pursuant to NJSA 47:1A-5(e), it is to be immediately available.

Sept. 4, 2003

Question:
Are police incident reports and police arrest reports open to the public?

Answer:
Incident reports, where the police respond but no further action is taken and no arrest has been made, are open. Arrest reports, because they involve ongoing investigations are not accessible.

Sept. 2, 2003

Question:
Are state representatives under any obligation to reveal their medical status or health problems?

Answer:
No. The Open Public Records Act specifically exempts any personal medical information and no other law requires such disclosure.

July 14, 2003

Question:
Are divorce records open to the public?

Answer:
Yes, all court records are open unless sealed by law (for example, adoption records) or are specifically sealed by the court. Divorce records are open but if they involve children, the court may seal those parts of the record.

July 9, 2003

Question:
May a public entity keep a litigation settlement agreement confidential?

Answer:
No. In an unpublished decision in 2001 a judge in Atlantic County required the county to provide a New Jersey newspaper with a copy of a “confidential” settlement agreement finding that the information was public under the terms of the Local Fiscal Affairs Law and the Right to Know Law. Under the Open Public Records Act, the settlement is a government record and there is no exception for “confidential” agreements. In short, a public entity cannot, by agreement, render government records inaccessible to the public.

July 9, 2003

Question:
Can the New Jersey Department of Health deny access to a list referring to the location of the occurrence of diseases and their cause fatalities because it might reveal the cause of death?

Answer:
No. A statistical listing of the locations of disease outbreaks does not reveal information about any particular person.

July 9, 2003

Question:
As part of the state oversight of Camden, a review of the municipal court was undertaken. Is the report about the court a government record open for inspection?

Answer:
Maybe. If the report was ordered by the courts, it is not subject to OPRA because OPRA does not govern the courts. If the report was ordered by the state, it is a government record open to inspection but may be exempt from disclosure if it is part of an ongoing investigation.

June 25, 2003

Question:
The police released the name of a juvenile charged with drunk driving. May the newspaper print the name?

Answer:
Yes. Information obtained lawfully, in this case from the police, may be published.

June 2, 2003

Question:
If a municipal attorney hires a consultant to review data on behalf of the municipality, is that consultant’s report public under OPRA?

Answer:
If the report is solely to assist the attorney in advising his client, it may be protected as attorney work product.

May 16, 2003

Question:
Are 911 tapes open to inspection by the press and the public?

Answer:
Yes. Two recent appellate court decisions have found that 911 tapes are government records under the Open Public Records Act. The courts recognized, however, that there may be instances where the release may jeopardize the investigation or the rights of the persons involved and noted the custodian could seek to have the tapes sealed.

May 5, 2003

Question:
Are resumes of applicants for the position of chief of police available to the public under the Open Public Records Act?

Answer:
Under Executive Order 26, signed by Gov. McGreevey on August 12, 2002, resumes and/or applications are not available while the hiring process is ongoing. Once a person has been hired, the resume of the successful candidate is open. However, the resumes of the unsuccessful candidates are only open if the candidate permits.

April 2, 2003

Question:
May a newspaper print allegations from a civil complaint against juveniles?

Answer:
The newspaper may report upon documents filed in court although there is some case law that indicates that a recitation of allegations in a complaint must be accompanied by the defendant’s answer or statement in reply to be fair and accurate and therefore privileged.

Feb. 28, 2003

Question:
Are records of who has been issued a permit to carry a handgun available under OPRA?

Answer:
No. An administrative regulation, NJAC 13:54-1.15, specifically makes such records confidential and declares the records are not public records.

Jan. 29, 2003

Question:
May a municipality withhold the terms of a litigation settlement on the basis that the plaintiff will not agree to its release?

Answer:
Under OPRA, the settlement should be available and the plaintiff in the suit has no right to withhold the terms from the public. The suit may have been settled under a confidentiality agreement. There is a court decision holding that settlements by public agencies may not be made confidential but if the settlement was nonetheless made subject to such an agreement, then the municipality may be withholding the settlement, subject to the plaintiff' consent to avoid a suit asserting it breached the agreement. In that case the newspaper may have to initiate suit to gain access.

Jan. 29, 2003

Question:
May the newspaper obtain the death certificate for an inmate who died in custody?

Answer:
Under OPRA, the cause of death would be blacked out. There is a health department regulation that prohibits the release of the cause of death. However the record may be available under the common law if the need for access outweighs the need for confidentiality. One court has granted access in the case of an inmate dying in custody. Shuttlesworth v. Camden 258 N.J. Super. 573 (App. Div. 1992).

Jan 21, 2003

Question:
Are health dept reports listing the incidences of cancer and the locations of the person diagnosed exempt from OPRA?

Answer:
Yes. NJSA 26:2-107 makes the reports confidential and therefore they are exempt under OPRA.

Jan. 21, 2003

Question:
Are the police required or permitted to black out addresses on incident reports provided to the media?

Answer:
No. If a crime has been reported or committed the police are required to provide the location of the incident.

Jan. 21, 2003

Question:
Are death certificates public records?

Answer:
Yes, although the registrar may delete the social security number and cause of death from the document before providing it.

Nov. 22, 2002

Question:
Are public bodies permitted to enter “confidential” settlements and withhold the terms of the settlement from the public?


Answer:
Nothing in the Open Public Records Act permits a public body to withhold such information. In fact, in a case under the old Right to Know Law, a New Jersey newspaper sought records of a settlement of an employee’s sexual harassment suit against Atlantic County and the court found that the county could not keep records of the settlement secret, despite a confidentiality agreement in the settlement.

Nov. 22, 2002

Question:
A police officer and fireman in the same town got into an altercation and the police officer made a formal report of the incident. Is that report available?

Answer:
If the police department plans to investigate the incident, it may treat the report as part of an investigation in progress and withhold it from the public. If it will be treated as an incident report, it should be made available.

Nov. 1, 2002

Question:
Under OPRA must a person requesting a copy of a bill have the bill or invoice number or can the request be made for bills paid to a named vendor?

Answer:
The request for bills paid to a specific vendor should be enough.

Oct. 18, 2002

Question:
Is the contract of a superintendent of schools a public record and accessible under the Open Public Records Act?

Answer:
Yes, although social security number will be blacked out.

Oct. 18, 2002

Question:
Are toxicology reports from the medical examiners office public records and accessible under the Open Public Records Act?

Answer:
Yes, only autopsy photographs are exempt.

Sept. 3, 2002

Question:
Are the resumes of all applicants for the position of a public high school superintendent available under OPRA?


Answer:
A review of the latest Executive Order, No. 26, of Governor McGreevey indicates that under Paragraph 3 thereof only the resume of the successful applicant shall be made available - after appointment/date of hiring. The resumes of unsuccessful candidates may be disclosed after the search has been concluded and the position has been filled, but only where the unsuccessful candidate has consented to such disclosure.

Aug. 26, 2002

Question:
Are complaints with the police internal affairs department open to public inspection under OPRA?


Answer:
Internal affairs records are confidential, not open to the public.

Aug. 23, 2002

Question:
A public body advised it could not provide copies of attorney bills because that would require it to compile records. Is this correct?


Answer:
No. The Open Public Records Act specifically makes attorney bills and invoices submitted to a public agency for payment open to the public (with any privileged material removed). NJSA 47:1A-1.1.

Aug. 15, 2002

Question:
Are police blotters open to inspection under OPRA?


Answer:
Police blotters may be public records open to access under the Open Public Records Act, NJSA 47:1A-1 et seq. However, an argument can be made that they are in some occasions "criminal investigatory records."


OPRA exempts "criminal investigatory records" which are defined as "a record which is not required by law to be made, maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding." My understanding is that the police blotter is simply a listing of calls to which the department responds. This record may then be merely a business record and not an investigatory record. It should, under this theory, be accessible.
The police may, however, argue that the blotter, depending upon the information contained therein, may be related to a criminal investigation and therefore not open to inspection. Unfortunately there is no clear answer.


Of course, information related to a report of a crime or an arrest for a crime must, under OPRA and Executive Order 69 signed by Gov. Whitman, be provided within 24 hours of the request for such information.

Aug. 15, 2002

Question:
Are 911 tapes public records under OPRA? Are they exempt as criminal investigatory records?


Answer:
911 tapes are public records and are not exempt. Even if the records become relevant to an investigation, OPRA specifically states that records that were available before an investigation commenced remain available.

July 23, 2002

Question:
Are vouchers and invoices available for inspection under the Open Public Records Act?

Answer:
Yes. In fact the law states the "budgets, bills, vouchers, contracts" shall "ordinarily" be immediately available.

July 22, 2002

Question:
Are briefs filed with the court open to the public?

Answer:
Yes. Under the rules of the court, unless documents are sealed by specific court order by existing rules of the court or law, for example juvenile records, they are open to the public.

July 16, 2002

Question:
Does OPRA permit non-disclosure of fees paid to the public defender on behalf of a particular client?

Answer:
NO. OPRA exempts files held by the public defender but refers to this case files. Attorney fees paid by a public agency are specifically made public.

July 16, 2002

Question:
Are autopsy reports public records?

Answer:
Yes. The Open Public Records Act exempts autopsy photos but the reports are public records.

July 8, 2002

Question:
Are 911 tapes public records? If so are they exempt from disclosure because they form part of an ongoing investigation?
 

Answer:
911 tapes are public records, and they are not exempt because they are held as part of an investigation. Under the Open Public Records Act, NJSA 47:1A-1 et seq., the section limiting access to records of investigations in progress state: This provision shall not be construed to allow any public agency to prohibit access to a record of that agency that was open for public inspection, examination, or copying before the investigation commenced." NJSA 47:1A-3(a).

May 30, 2002

Question:
What statute should be referenced when making a request for records?

Answer:
The Right to Know Law, NJSA 47:1a-1 et. seq., to be known after July 8, 2002 as the Open Public Records Act.

June 5, 2002

Question:
Are police accident reports available to the public? If so are they still open if the accident results in a fatality?

Answer:
Yes. NJSA 39:4-131 states that police accident reports, the form reports later forwarded to the DMV, are open to public inspection and copying and "the information therein shall not be privileged or held confidential". In addition, if a crime was committed the police are required by Executive Order 69, signed by Gov. Whitman in 1997 requires the police provide certain information as to the incident, the who, what why, when basic information.

June 5, 2002

 

Question:
May a public body make a confidential settlement of a civil litigation?

Answer:
A recent Court decision indicates that such settlements should not be confidential. In December an Atlantic County Judge held that Atlantic County was required to reveal the terms of a settlement of a sexual harassment litigation. In a suit brought by The Press of Atlantic City for access to the settlement terms the Court reasoned that the Local Fiscal Affairs Law and the Right to Know required that any expenditures by the County were open to public inspection, thus the monies paid out to settle the suit were not to be confidential.

June 3, 2002

 

Question:
Are Tort Claims Notices on file with the municipality public records under the current law and the new Open Public Records Act? Does did change the result that the claim is for sexual harassment?

Answer: 
Under the current law Tort Claim Notices are public records because they are required by law to be made, maintained and kept on file. Under the new law they will also be public records. The result does not change if the claim is sexual harassment. Under the new law, the Open Public Records Act, sexual harassment claims are protected from disclosure only when the claim remains within the department. For example a complaint made to a supervisor under a sexual harassment policy is protected. Once the claim goes outside those channels however, when a tort claim notice is filed, when a complaint is made to the Division on Civil Rights or to the courts, the records are open to access.

May 31, 2002

Question: 
Are criminal motion briefs in the United States District Court open to inspection?

Answer: 
Unless sealed the briefs should be available. The Clerk’s office takes the position that briefs are not part of the public record to be maintained by his office or accessible from his office. Generally in District Court copies must be obtained from the parties.

May 30, 2002

Question: Are e-mails, sent between members of a public body government records? If so may a newspapers that comes into possession of such emails publish them?

Answer: Under the current law the emails are probably not statutory public records because they are not "required to be made, maintained, or kept on file" by any law. They are, however, common law public records. Under the new Open Public Records Act the emails will be statutory public records. If the newspaper has copies of these records they may publish them, generally any documents the newspaper lawfully obtains may be published. Caution should be taken to insure the emails were written and sent by they person who is purported to have sent them.

May 30, 2002

Question: 
What statute should be referenced when making a request for records?

Answer: 
The Right to Know Law, NJSA 47:1a-1 et. seq., to be known after July 8, 2002 as the Open Public Records Act.

May 10, 2001

Question:
Is there a time frame in which a public agency must provide copies of public records?

Answer:
The statute does not require a response in a specific time period. The statute states that the records should be "readily accessible" and that a citizen shall have the right to inspect the records "during regular business hours."

May 4, 2001

Question:
If a business files an application or document with the municipality is that application/document open to public inspection?

Answer:
If the application/document is required to be "made, maintained, or kept on file" it is a statutory public record and open to inspection.

April 26, 2001

Question:
Are tort claim notices filed with the municipality public records?
Answer:
Yes. Pursuant to statute a tort claims notice must be filed with a municipality prior to filing suit against the municipality. Since they are required by law to be made and kept on file they are public records under the Right to Know Law.

Question:
Are the numbers of cell phones owned by the county and assigned to officials and/or employees available?
Answer:
Yes. Although there is a New Jersey Supreme Court case that declares that itemized telephone bills are not open for inspection, the basis of that decision was to protect the communications between legislators and their constituents. There is no reason to withhold the numbers of telephones owned by the county.

April 20, 2001

Question:
May the police bar a photographer from the scene of an automobile accident?
Answer:
Yes. The New Jersey Supreme Court determined in State v. Lashinsky, 81 NJ 1 (1979) that the police or fire department had the right to control the scene of an accident or emergency, the exercise of such control did not infringe upon the First Amendment.

April 19, 2001

Question: 

Are the police prohibited from releasing the name of a juvenile

victim of a car accident?

Answer:
No. There is no legal reason why the name should not be released,

although the police may withhold the name until the parents of the

juvenile have been notified.

April 18, 2001

Question: 
Is there a statutory requirement that records be held by the 
custodian for a specific period of time?
Answer: 
Yes. NJSA 47:3-9 sets forth the period of retention for different types of records held by county clerks or and/or registers of deeds.

January 25, 2001 

Question:

Are formal complaints to the Dept. of Health public records? 
Answer: 
Any records required by law to be "made, maintained, or kept on file" 
are public records under the current public records law. Complaints to the Dept of Health would fall into this category unless exempted by some other law, rule of regulation. If access is denied the Dept should specify the reason for the denial including the citation to the rule, regulation or law permitting the denial. 

January 4, 2001 

Question: 
Is a municipality's settlement of sexual harassment charges 
filed by an employee of the municipality a public record if the 
matter was settled before any litigation was filed? 
Answer:
Any record of monies paid out by the municipality should be 
accessible to the public. A request for the record should be made 
under both the statutory Right to Know, NJSA 47:1A-1 and the 
common law. Under the statute only those records required to be 
"made, maintained or kept on file" are public records but the common law permits access to almost all records where the right to know, when balanced against the need for privacy, favors access. It is best to request the records under both theories.

December 7, 2000

Question: 
Received a call RE: obtaining a coroners report regarding an 
alleged suicide of mayor, which occurred about 3 years ago. 
Reporter wanted to know what his rights to such a report were 
and some suggestions as to how he should go about it. 
Answer: 
I advised to put his request in writing, or phone with a follow-up in 
writing, so that there is a record of it. I also advised him that he would probably have a right to the records under the Right To Know Law, Title 47. I assume that a coroners report is required by law to be created and/or maintained and, as such, it would be subject to the Right To Know Law. But I did advise him that if there were another statute or a properly passed agency regulation, or a Governors Executive Order excepting such reports from public access under the Right To Know Law, they would not be accessible under that statute (Title 47).

In such a case, however, I advised him that he would still have 
available the Common Law Right To Know and he could pursue that, 
although it would probably necessitate litigation. 

I told the reporter to go ahead and put his request in writing and then see what the coroner says. If the coroner refuses his request, I told him that he ought to get specific reasons for the basis of such a denial and then get back to me and we can evaluate it further from that point on whether its Right To Know Law or Common Law Right. 

I did mention that with respect to the Common Law Right To Know, 
the longer the period of time from the date of the Mayors death to the date of the request, the lesser concern for privacy, I would think; thus, the passage of 3 years assists us in the weighing process under a Common Law test.

December 6, 2000

Question: 
Is the Delaware River and Bay Authority subject to New Jersey law 
for purposes of the Right to Know Law? 
Answer: 
It is unclear. The legislation creating the Authority, NJSA 32:11E-1, Article IV, makes the Authority an agency of the State of New Jersey as well as of the State of Delaware. However, the Authority is a hybrid agency that is permitted, to a certain extent, to create its own rules and regulation. Since the court has held that employees who work in the state of New Jersey for the Authority must be treated in accordance with New Jersey labor law, a good argument can be made that the Authority is subject to New Jersey law 
including the Right to Know Law.

October 24, 2000

Question: 
Are there specified costs for copies of common law public records? 
Answer: 
No. The costs set forth in the public records law are for copies of statutory public records. Fees for reproduction of common law public records are to be reasonably related to the actual cost of reproduction under the NJ Supreme Court decision in Higg-a-Rella v. County of Essex, 141 N.J. 35 (1995)

June 13, 2000

Question: 
What information concerning crimes must the police provide? 
Answer: 
Under Executive Order 69, signed by Gov. Whitman in May 1997, the police must provide basic information regarding the circumstances of the crime, identifying the accused (if an arrest has been made), the text of any charges and the circumstances of the arrest, and, in most circumstances, identifying the victim.

April 20, 2000

Question: 
Are domestic violence records public records? 
Answer: 
No. Under N.J.S.A. 2C:25-33 all court records of domestic violence are confidential. See also Pepe v. Pepe 258 N.J. Super. 157 (1992).

November 1, 1999

Question: 
Do documents become accessible to the public when they are 
introduced at trial?
Answer: 
Yes. Any documents which become part of the court record become open to inspection unless sealed by the court. For example a police report which might not be accessible would become part of the record if introduced as an exhibit at trial, it would be open to inspection just as if it were a complaint.

September 14, 1999

Question: 
Are complaints filed in Municipal Court public records open to 
inspection? 
Answer: 
Yes. The Rules of Court which govern all New Jersey courts declare that all papers filed with the court are public records open to public inspection unless specifically sealed by the court.

August 27, 1999

Question: 
What are the standards for media access to juvenile 
proceedings?
Answer: 
Under statute, NJSA 2A:4A-60(i), a member of the news media may 
request permission of the court to be present during juvenile 
proceedings. The court should grant the request unless it finds "a 
substantial likelihood that specific harm to the juvenile" would result. 
The burden is upon the juvenile to show a substantial likelihood of 
harm and the harm must be specific to that juvenile. The court has 
held that the embarrassment of having the charges known to the 
public and/or any harassment that may result from the public having 
that information is not "specific", it is the harm suffered by all 
defendants, and thus it will not form the basis for denying access. 
State in the Interest of K.P. 311 NJ Super 123 (Ch. Div. 1997).

July 2, 1999

Question: 
May the county jail use a 1-900 telephone number, at a charge 
of $1.00 per minute, to release information as to specific prisoners?
Answer: 
Nothing in the law prohibits the county from doing so.

June 29, 1999

Question: 
The prosecutor's office is investigating a car accident involving a 
police officer. Can the newspaper obtain a copy of the initial police 
report under the public record law? 
Answer: 
The accident report is a public record under both the statutory Right to Know Law and the common law. However the statute contains an exemption for records of an investigation in progress and the prosecutor and the local police will probably invoke the exemption. The report therefore is unlikely to be available until after the investigation is completed.

June 28, 1999

Question: 
A reporter indicated that he's writing a story on protracted 
ongoing litigation between a school board and contractors who 
constructed a building for the school board. Apparently, the 
school board is claiming that the contractors did not meet the 
specifications in the bid before constructing the building in 
question and maybe even that the building has defects. In any 
event and in order to complete the picture, the reporter has 
asked the school board to send him copies of payments of past 
bills for their counsel. The school board is arguing that they do 
not have to afford him that information inasmuch as that would 
reveal their trial strategy.
Answer: 
The records of the bills are mandated by law and he should have an 
absolute right to them under Title 47. We know of no regulations, etc. which would exempt them from public access. Moreover, the reporter is correct in that the school board's affording the public the knowledge of how much they have paid for legal bills would not work a revelation as to trial strategy. That argument is specious. Moreover, even if a municipality or local board asked for copies of itemized bills, they still have to turn them over -- regardless of whether or not strategy is included therein. There have been previous cases as to that. In any event, there would appear to be no valid reason for the board refusing the information requested. 

June 24, 1999

Question: 
Does a newspaper have rights to obtain record information 
from a municipality as to whether or not a specific employee 
worked on a specific date? The newspaper has information that 
the employee was at another job site on the particular date 
that is being inquired about. The newspaper is investigating 
whether or not there's any scam or fraud being constituted by 
the employee against the municipality.
Answer: 
The newspaper has an absolute right to this information under the 
Right To Know Law if those records are mandated to be kept by State statute. The only exception to that would be if the mandating statute exempted these records from being public records under the Right To Know Law or if there's some State regulation or Governor's Executive Order which would exempt them.

The newspaper has Common Law rights to these records -- if the 
records were kept in the ordinary course of business of the 
municipality, whether or not mandated. The Common Law right can be subject to a balancing test-- i.e., the public's interest in 
knowing balanced against the employee's need for privacy.
The newspaper will go ahead and make the request of the municipality along these lines.

June 22, 1999

Question: 
A newspaper would like to get copies of letters written by the 
Prosecutor's Office wherein the Prosecutor's Office wrote to the 
County Administrator asking for steps to remedy conditions of mold in 
the office wherein the Prosecutor and his staff, etc. are located. What rights would the newspaper have to obtain these letters or copies thereof. 
Answer: 
There are two avenues of approach: 

(1) Title 47. Under the Right To Know Law, NJSA 47:1A-1 et. seq., any records that the Prosecutor's Office are mandated to keep must be made available to the public without exception, save for any regulations, Governor's executive order, or the like which exempts them. I advised that I am not sure whether or not there is a mandate--legislative or otherwise--that the Prosecutor's Office keep these kind of letters. But in the paper's request for them, it seems to me proper for it to assume that there is and let the Prosecutor's Office advise if there is not. Of course, if the Prosecutor's Office agrees that keeping these records is mandated but that there is some regulation which exempts them from public access, let the 
Prosecutor's Office cite the regulation and that can be checked out. 

(2) Common Law Right. The public and newspapers have access to all records kept by the Prosecutor's Office in the course of their business except where there are reasons for matters of personal privacy or investigations being in jeopardy, or the like that would balance against that. One would assume that there are no privacy concerns or investigation concerns present here to balance against the public's right to access. In any event, I advised that the paper should make its letter of request for these records under both 
rights--the right to know and common law. 

June 21, 1999

Question: 
A local municipality has had an outside firm conduct an audit of its 
books. The audit report has now been turned over to the municipality. Is the audit report a public record? 
Answer: 
Maybe. If the audit was required by law the report is a statutory public record under the right to Know Law. The Right to Know Law defines a public record as any record that is required by law to be "made, maintained, or kept on file" by a public agency. If the audit was not required by law it is a common law public record and should be available for public inspection provided there is no argument that the report contains confidential information that supports a need for non-disclosure. The resolution authorizing the hiring of the outside firm should state the purpose of the audit, whether it was required by law.


Question: 
May newspapers take a photo of private property (a back yard) from 
adjoining property when the adjoining property owner gives consent?
Answer: 
Yes. So long as the photographer is legally on the property (such as a public sidewalk) or on the property with the consent of the owner a photo may be taken of anything that can be seen from that spot. A photo that unreasonably intrudes however, such as a photo in a window with a telephoto lens so as to see things the naked eye could not see, would probably not be similarly protected.

June 17, 1999

Question: 
The newspaper has obtained a copy of a restraining order and the 
report of the arrest for violation of the order. May the newspaper use the materials even though they originated in Domestic Court? 
Answer: 
Yes. The documents are public records and the newspaper may report upon them. Domestic court records are not automatically sealed; there must be a motion to seal and a hearing just as in any court matter.

June 16, 1999

Question: 
May the newspaper quote court documents or a public official as to 
matters in court and of public concern? 
Answer: 
Yes. As long as the statements are fair and accurate the newspaper is afforded a qualified privilege to report and anyone seeking to sue in libel must prove actual malice, that is that the newspaper knew what it was publishing was false.

November 25, 1998

Question: 
The paper raised a question pertaining to a report that was 
commissioned by the county in connection with the collapse of a 
wharf on the waterfront. The paper indicated that subsequent to the 
collapse, the county caused a report to be prepared to discuss what 
caused the collapse and who may be responsible. Apparently, the 
county discussed the report in closed session and refused to release 
the report. 
Answer: 
I advised the paper that under the Access to Public Records statute, the report would not be a statutory public record since there is not statute requiring the preparation of same. I also advised that it was a common law public record but that given the fact it was a common law public record, there had to be a weighing between the interest of the public in seeing the record and the need of the public entity in keeping the record confidential. 

The paper advised the county was asserting a need to keep the record confidential in order that it might assess who may be responsible to make necessary repairs. I indicated that at the common law, a line had to be drawn and in the first instance it was the function of the public entity to strike that balance and draw the line. If the paper disagreed with that, the paper had the option of trying to persuade the public entity that where it drew the line was 
incorrect or, ultimately, litigating the issue.

November 19 1998 

Question: 
Is the annual audit of a school district completed by the State a public record? 
Answer: 
Under the Right to Know Law, any record which is required by law to be "made, maintained, or kept on file" is a public record subject to public inspection. If the audit is required by statute, then it is a public record. An exception would exist where the record has been exempted from the Right to Know Law by some other law, executive order of the Governor, or departmental regulation. The government body withholding the record should state if it is doing so under an exemption and, if so, which one. 

November 9, 1998

Question: 
Inquiring newspaper is about to embark on a public access project 
and asked four basic questions which are as follows: 

(1) Is there anything in the Open Public Records Law that requires a request to be in writing? 

We advised that the statute is silent as to whether or not a request must be in writing and consequently a court would not, in our judgment, prohibit a municipality from requiring requests to be in writing. 

(2) Does the Access to Public Records statute require a person to identify themselves in order to access records? 

We advised that the statutory right to access does not have a specific identification requirement although the statute indicates that the right of access granted thereby are accorded to "citizens of this State." Thus, a public agency could argue that it needs identification in order to verify that an individual is a citizen of New Jersey. 

(3) Are police logs statutory public records as such are maintained? 

We advised that since there is no requirement that the "police log" be maintained, it is not a public record. We further advised that Executive Order 69 entitles a person to receive information but not to see the underlying document.

(4) Is there any time frame within which a public agency must 
respond to a request for access? 

We advised the statute is silent as to a time frame for a response and thus a court would impose a rule of reasonableness, i.e. the public agency had a reasonable time to respond to the request. What constitutes a reasonable time will, of course, be a function of the volume and extent of the request.

October 23 1998 

Question: 
Is a report, created by the Department of Banking and Insurance and 
maintained by the Administrative Office of the Courts ("AOC") a 
public record? 
Answer: 
The Right to Know Law defines as public records any record required by law to be "made, maintained, or kept on file". This does not however apply to the courts. Court proceedings are governed by the rules of court which mandate the all court proceedings be open to the public. This rule also requires that records associated with the open proceedings be open. The rule does not address other records maintained by the court. Thus it appears that the records may only be obtained under the common law.

The common law requires a balancing test between the public right to know and the need for privacy of the records. This test is fact sensitive and depends upon the circumstances of each case. 

October 22 1998 

Question: 
The local police chief reserves unto himself the authority to release 
information regarding crimes. When he comes on vacation he fails to 
appoint another person and the newspapers cannot get any 
information until he returns. Is this proper under the law? 
Answer: 
No. Executive Order 69, executed by Gov. Whitman in May 1997 states that information related to crimes "shall be available to the public within 24 hours, or sooner if practicable". The delay in the release of information for a week or more while the chief is on vacation would be a violation of the Executive Order. In fact, the Order requires the prosecutors office to designate an individual to be available after hours to respond to information requests. If a problem arises with a specific local police officer, the county prosecutor is empowered to settle any disputes and the problem should be brought to his or her attention. 

October 20, 1998 

Question: 
When the municipality requires that certain applications to the 
building inspector and/or planning board first undergo review by an 
advisory board, the historic preservation commission, are the 
applications to the historic preservation commission open to public 
inspection? 
Answer: 
If there is a municipal ordinance which requires that the application be made to the board then the application is a public record. The right to Know Law holds that every document which is required to be "made, maintained, or kept" by law is a public record. Thus if by municipal ordinance the application is required to be submitted it is a public record. 

September 27 1998 

Question: 
Where the court has sealed the files in a civil suit arising out of a 
criminal conviction. Does that seal the criminal records as well? 
Answer: 
The contents of the Order dictates what documents are sealed. The court should be able to advise the reporter what documents are sealed if the Order itself is not open to review. The common law requires a balancing test between the public right to know and the need for privacy of the records. This test is fact sensitive and depends upon the circumstances of each case. 

August 13, 1998

Question: 
The Judge in a Family Court matter regarding a custody dispute 
between gay partners has sealed the record and refused to provide 
any information as to his decision. Similar cases are pending in three 
other counties and in those actions the court has permitted limited 
access to the proceedings and/or decisions on the agreement by 
those present that no identifying information would be released. Is 
there any mechanism by which the court can be compelled to release 
the decision? 
Answer: 
In Family Court matters, and especially in custody matters, the courts are granted a great deal of discretion in the release of information. Custody matters are usually closed and there is no mechanism to compel production of case records. Since this action encompasses a new area of the law, the court may be persuaded to release its decision with all identifying information removed. The reporter should make the court aware of the other pending cases and the measures taken by the Judges in those cases to insure the privacy of the parties in a formal request for the court decision. The knowledge that other courts have been able to deal with the issue of privacy, while permitting access to the court decisions, may persuade this Judge to do the same. 

May 4, 1998 

Question: 
May the newspaper print the name of a juvenile convicted of a 
misdemeanor when it obtained the name from the court docket listing 
posted outside the courtroom? Answer: Yes. The United States 
Supreme Court has determined a newspaper may print information 
related to juveniles when it obtains the information lawfully. 
Answer: 
Yes. The United States Supreme Court has determined a newspaper may print information related to juveniles when it obtains the information lawfully.

April 21, 1998

Question: 
Does the law permit a police department to keep confidential arrest 
information when the arrested individual is a police officer? Are 
records in family court automatically sealed? 
Answer: 
There is no provision in the law which permits a police department to fail or refuse to release information of the arrest of a police officer. The arrest information is to be provided pursuant to Executive Order 69 executed by Governor Whitman in May 1997. As to the family court, matters affecting juveniles and the records of those proceedings are generally closed.

 

Other matters, however, for example matrimonial actions, are open and only sealed when the court makes specific findings of a need to seal the record. (The potential embarrassment to the parties is not a sufficient reason to seal the 
record.)

 

The Hotline is operated by NJPA's General Counsel, Tom Cafferty of Gibbons P.C.  Cafferty has served in this capacity for more than 30 years and has extensive First Amendment and communication law expertise. The Hotline is available to all publications that are active members of the New Jersey Press Association.

To reach the Hotline:

Call (973) 596-4863 The regular hours are 9 a.m. to 5 p.m. Monday through Friday, but callers may leave a recorded message 24 hours per day on a dedicated voice-mail line. The Hotline attorneys will return all calls as soon as possible.
Fax: (973) 639-6267  
Write: NJPA Legal Hotline, c/o Gibbons P.C., One Gateway Center, Newark, NJ 07102-5310

E-mail: tcafferty@gibbonslaw.com

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