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.
Dec. 2, 2004
Question:
The police have sent a bulletin regarding the reporting of
suspicious behavior to local business people. Can the police refuse
to provide a copy to the public because the letter dealt with
potential terrorist activity?
Answer:
No. Distribution of the letter to businesses in town makes it
evident that it is not security sensitive material.
Nov. 17, 2004
Question:
The newspaper has obtained a copy of a confidential contract entered
into by a public agency. May the newspaper use the contract and
quote parts of it for an article?
Answer:
Yes, assuming the newspaper lawfully obtained the document. The
United States Supreme Court has held that a newspaper may publish
any information it lawfully obtains. A copy of a contract provided
to a newspaper by an anonymous or confidential source would be
lawfully obtained, provided the newspaper did nothing to assist in
any unlawful acts (for example theft of the documents).
Nov. 8, 2004
Question:
Are autopsy reports available under OPRA?
Answer:
Maybe. The report should be available although the medical examiner
and police may argue that it is part of an investigatory record.
Autopsy photos are not available.
Sept. 22, 2004
Question:
Are audio tape recordings of board of education meetings public
records under OPRA?
Answer:
Yes. OPRA defines a government record as “any ... information stored
electronically or by sound-recording or in a similar device ... that
has been made, maintained or kept on file in the course of his or
its official business by any officer, commission, agency, or
authority of the State or any political subdivision thereof ...”.
Thus sound recordings made by a board of education are government
records.
Sept. 17, 2004
Question:
Are police internal complaints available under OPRA?
Answer:
No. The attorney general, through a regulation adopted a number of
years ago, exempted internal police disciplinary matters from
access.
Sept. 14, 2004
Question:
A municipality received a report submitted in July by a borough
engineer about the water utility. The borough clerk has indicated
that the report would not be released because the council is
negotiating the sale of the utility and the report is off limits
until after negotiations. Is this permissible under the OPRA?
Answer:
Under the OPRA, there are only two possible exemptions for this
report. One is the exemption dealing with information that provides
an unfair competitive advantage to a bidder. This exemption should
not apply here because: (1) it is unclear that there is bidding
going on as opposed to negotiating a private sale; and (2) if the
report was made publicly available, it would not give one bidder an
advantage since all bidders would have equal access to the report.
The second potential exemption is for advisory, consultative and
deliberative material. This exemption, however, is specifically
limited to such material and any factual data in the report must be
released with only true advisory, consultative or deliberative
material redacted.
Sept. 8, 2004
Question:
Are death certificates public records under OPRA?
Answer:
Yes. However there is a heath department regulation which makes the
cause of death confidential. The cause of death can only be obtained
under a common law claim for access.
Aug. 2, 2004
Question:
Are building blueprints exempt under OPRA?
Answer:
In some instances, yes. OPRA exempts “emergency or security
information or procedures for any buildings or facility which, if
disclosed, would jeopardize security of the building or facility or
persons therein; security measures and surveillance techniques
which, if disclosed, would create a risk to the safety of persons,
property, electronic data or software ...”. Taken together these
exemptions might form a basis to withhold blueprints. In addition
the State is formulating regulations to regulate access to other
records which, if released, might increase the risk of a terrorist
threat.
July 16, 2004
Question:
Are domestic partnership registrations exempt from OPRA?
Answer:
No. Domestic partner registrations are available in the same manner
other vital statistic records are available, that is, any person can
obtain an uncertified copy, although certain information may be
redacted.
July 8, 2004
Question:
If a police department regularly handles requests for police
records, is the municipal clerk the records custodian, still
responsible to provide access under OPRA?
Answer:
Yes. OPRA makes the municipal clerk the official ultimately
responsible for public records.
June 29, 2004
Question:
Does the Open Public Records Act prohibit the police from releasing
the name of a juvenile victim of an accident?
Answer:
No. However, there may be other laws which exempt certain juvenile
information such as juvenile detention information and school
records. If any other such law exists and is applicable to the
request, it is the responsibility of the custodian to cite the other
law in denying access.
June 22, 2004
Question:
A municipality has denied access to a tort claims notice as
“potential litigation”. Is this correct?
Answer:
No. The clerk confuses the Open Public Records Act with the Open
Public Meetings Act. Under the Open Public Meetings Act, a public
body may exclude the public to discuss potential litigation. There
is no exception in the Open Public Records Act and a tort claims
notice is a government record which should be immediately available
to the public.
June 9, 2004
Question:
Are tort claims notices available to the public under OPRA?
Answer:
Yes.
May 13, 2004
Question:
May a custodian of public records require a deposit before making
copies pursuant to an OPRA request?
Answer:
Only where the request is from an anonymous requester and the
custodian estimates the total cost of reproducing the records will
exceed $5.
April 13, 2004
Question:
A reporter requested a public record from a school board member and
the board member refused to provide the information but directed the
reporter to the board secretary for the record. Is the procedure
correct under the Open Public Records Act?
Answer:
Yes. The Act requires that any public official who receives a
request for records direct the request to the custodian of the
records.
March 24, 2004
Question:
A school board has published a summary of its budget and has
distributed it to the board members but has not voted on it yet. Is
the school budget a public record?
Answer:
Yes. A record is a public record available for inspection when it is
“made, maintained or kept on file in the course of his or its
official business” by the public body. The fact that the board has
not yet voted on the budget is not a cause to deny access.
March 10, 2004
Question:
If an attorney for a public body has provided a written opinion that
the custodian should provide access to a budget and the custodian
refuses, is there a violation of the Open Public Records Act and, if
so, what is the penalty?
Answer:
If the custodian “knowingly and willfully” unreasonably denies
access “under the totality of the circumstances,” is subject to a
fine of $1,000. Under the circumstances here, it appears the
custodian is in violation of the act.
Feb. 19, 2004
Question:
Are gun licenses/permits considered public records? If so, are they
open to inspection?
Answer:
The licenses/permits are public records but they are not open to
inspection. They are exempt from disclosure by attorney general
regulations.
Feb. 9, 2004
Question:
What federal tax documents of a tax exempt organization are a
newspaper entitled to review?
Answer:
An organization exempt from federal income tax under 501(a) and 501
(c) and 501(d) of the IRS Code is required by law to make available
for public inspection the organization’s exemption application and
its three most recently filed information returns. With respect to
private foundations, private foundation’s returns filed on or after
March 13, 2000 are likewise subject to the same disclosure rules.
The request to examine the data may be written or in person. If the
request is written, then the organization has 30 days to respond. If
the request for copies is made in person, the request is generally
to be honored on the day of the request. In addition, the
organization may charge reasonable copying costs and the actual cost
of postage before providing the copies. The IRS presumes that a
charge of $1 for the first page and $.15 for each subsequent page is
reasonable.
Jan. 22, 2004
Question:
Is the reason for dismissal of a public employee open to the public
under OPRA?
Answer:
Yes. Under NJSA 47:1A-10, certain personnel information must be
provided including “name, title, position, salary, payroll record,
length of service, date of separation and the reason therefore, and
the amount and type of pension received.”
Visit our Access to Public Records Archives
(Nov. 25, 2003 - April 21, 1998)
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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