The Appellate Division has affirmed a lower court ruling that Choose New Jersey, Inc., a 501(c)3 non-profit, is not subject to OPRA. The opinion is online HERE. Choose New Jersey stated that it is entirely funded by private sources and that no governmental entity selects its board, controls how its business is conducted, or can make changes to its bylaws.
Notwithstanding that decision, there are many pseudo-governmental non-profits, and New Jersey courts have established the application of OPRA in certain circumstances. Whether or not the non-profit is subject to OPRA may depend on the non-profit’s formation, function, and funding. Was it formed by or does it maintain a close relationship with a governmental agency? Does a public body appoint the non-profit’s board? Does the non-profit perform a governmental function? Does the non-profit receive funding from federal, state, or local tax dollars?
OPRA and OPMA reform are needed to address the applicability of these laws to pseudo-governmental non-profits to ensure that operations that should be exposed to sunlight are. Until then, courts may be called upon to decide OPRA or OPMA applicability on a case by case basis.
A non-profit corporation with close ties to a governmental agency was found subject to OPRA in the following significant court cases:
Times of Trenton Publ’g Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519 (2005)
Fair Share Housing Center, Inc. v. N.J. State League of Municipalities, 207 N.J. 489 (2011)
Paff v. N.J. State. Firemen’s Association, 431 N.J. Super. 278 (App. Div. 2013)
Other decisions regarding non-profits appear on pages 19-20 in the file here.