Proposed Bill Adds New OPRA Exception

New Jersey lawmakers are currently considering legislation that would add a new exception to the state’s Open Public Records Act (OPRA). Unlike broad attempts to overhaul the state’s public record law, Assembly Bill Number 4532 focuses on a very narrow issue — preventing businesses from using OPRA requests for marketing purposes.

Spirit of OPRA

New Jersey’s Open Public Record Act aims to safeguard the public’s right of access to government records. Pursuant to the statute, “government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest, and any limitations on the right of access…shall be construed in favor of the public’s right of access.” Accordingly, the goal of OPRA is to foster government transparency.

Of course, the right of access is not unfettered. OPRA currently has 24 exemptions. Notably, records custodians may deny access to records that are specifically exempted from disclosure by state or federal statute, trade secrets, confidential records would constitute an unwarranted invasion of personal privacy, and documents that may compromise the security of both people and technology. OPRA also exempt records related to criminal investigations as well as inter-agency or intra-agency documents used in the deliberative process.

Proposed Exception for Pet and House Alarm Information

Under AB 4532, personal information (i.e. name, address, phone number and e-mail) provided on pet or home alarm system permits, licenses, or registrations would not be subject to OPRA requests. According to Assemblyman Wayne DeAngelo, he introduced the OPRA bill after several constituents reported that an invisible fence company was trying to obtain their personal information by filing OPRA requests to obtain local pet licenses.

“The thought that businesses would seek to use public, personal information to make a buck is not in the spirit of the open public records laws,” DeAngelo said. “While there are legitimate and necessary purposes for OPRA, this is not one.”

According to DeAngelo, municipalities attempted to protect their residents’ personal information by denying the OPRA requests. However, the denials resulted in lawsuits by the requesting company, which subsequently resulted in legal fees.

DeAngelo and his fellow sponsors point out that the bill will apply to a narrow set of circumstances. Meanwhile, critics argue that the exceptions will start to swallow the rule.

In testimony against the bill, the New Jersey Sierra Club argued that it would not have been able to stop the public development of Liberty State Park without unfettered access to public records. “For example, if the Sierra Club didn’t go to court to get the records on the private contract for Liberty State Park, we wouldn’t have known about the privatization,” said spokesperson Jeff Tittel. “We went to court to strip the arrogance and abuse of power of the DEP to release their plan to privatize the park.

The proposed legislation also generated controversy because it was first written in such a way that it suggested that it barred the award of an attorney’s fee in any OPRA proceeding if the records custodian acted reasonably and exercised good faith and due diligence. The bill has now been amended to clarify that its exception to the award of attorney’s fees is limited to proceedings involving pet and home alarm system license records.

The Assembly State and Local Government Committee recently voted to advance the bill. If signed into law, the new OPRA exception would take effect immediately.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck. He is also the editor of the Constitutional Law Reporter and []Government and Law blogs.

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