NJFOG Statement of Opposition to Bill S1232: “Good Faith” defense will undermine OPRA

UPDATE (6/15/2018): Bill A4532 / S3049 in the 2016-2017 legislative session was re-introduced as A2542 / S1232 in the 2018-2019 session. Bill S1232 passed out of Senate committee on 6/14/2018.

UPDATE (5/2/2017): On 5/1/17, Bill A4532 was received in the Senate and referred to the Senate State Government, Wagering, Tourism & Historic Preservation Committee.

UPDATE (3/24/2017):  A4532 passed the Assembly on 3/22/17. There has been no action on sister bill S3049 since it was referred to Senate committee on 2/28/17.  (See 5/2/17 update.)  In our view, the bill creates unnecessary exemptions to OPRA and an unnecessary new category called “personal government records” that could easily be misconstrued to encompass more than defined in the bill. The bill erodes OPRA further by barring recovery to plaintiffs who prevail in OPRA actions concerning this new category of records.  See our statement below for more detail.

(original post, revised for current bill number)

The description of bill A2542 / S1232 on the New Jersey Legislature’s website is as follows:

Exempts certain personal information from State’s open public records law; bars attorney’s fees award in denial of access proceeding in certain circumstances.



NJFOG strongly opposes bill S1232, which seeks to: 1) create a new category of public records under the Open Public Records Act (OPRA) called “personal government records,” defined as public records pertaining to a pet or home alarm system permit, license, or registration, 2) add an OPRA exemption for that portion of a personal government record which discloses any personal identifying information, and 3) bar recovery of legal fees by a successful requestor-plaintiff (fee-shifting) in an OPRA case concerning a personal government record if the court or GRC finds that the records denial was made in good faith (“good faith” defense). NJFOG strongly opposes all provisions of S1232.

We caution legislators against creating itemized exemptions to OPRA as a means to allay concerns of a particular group, which we believe is the motivation here. Certainly, there is someone who objects to the disclosure of every type of government record, whether the objection concerns the record’s content or its potential use. Businesses routinely use information for marketing, and there are many categories of public records that can be used this way. Creating exemptions is not the way to protect consumers from unwanted calls. OPRA should be construed in favor of the public’s right of access. Further, there are good reasons why the two types of records that S1232 proposes to exempt – alarm system permit and pet license records – should be publicly accessible.

Pet licensing is a means by which towns ensure that domestic animals are getting rabies vaccinations, a public health concern. The license information should be readily available to hospitals and veterinary clinics that are treating dog-bite victims. Further, a pet license application is a request for a special privilege that comes with agreement to comply with the rules of ownership. Whether or not there has been compliance with these requirements is a matter of public interest.

Homeowners and business that have alarm systems installed typically broadcast it by posting a sign in a front window or yard. Thus, there should be no privacy concern with disclosure of the permit records.

NJFOG further takes issue with the creation of a new category of records called “personal government records.” Exempt records need only be listed in the statute by name or description. The creation of a new category serves no purpose and may confuse courts and records custodians, who could interpret “personal government records” to encompass more than defined in the bill.

Additionally, there is no reason to have a bill provision (“good faith” defense) that bars reimbursement to a successful plaintiff. If an exemption applies, a challenge would not succeed, so the provision is a solution in search of a problem.

We note that were a requestor to sue for records and win, then the exception was improperly applied, and the denial was improper. This scenario is made more likely by confusion as to what constitutes a “personal government record”. Were the “good faith” defense allowed in this circumstance, individuals who are forced to fight for public records would repeatedly be made to bear the cost of that fight. That is simply unfair. The fee-shifting provision in OPRA was intended to address this situation by putting citizens on equal footing with government agencies that have numerous publicly-funded lawyers at their disposal.

Further, there are two published Appellate Division decisions in which the Court explained why a “good faith” defense would destroy attorney fee provisions, eliminating the plaintiff’s legal recovery in almost all cases:

• Hunter v. Trenton Housing Authority, 304 N.J. Super. 70, 75 (App. Div. 1997)
• Gregg v. Township Committee of Township of Hazlet, 232 N.J. Super. 34, 39 (App. Div. 1989)

Without the assurance of recovery, people who feel they’ve been improperly denied records would be hesitant to mount a legal challenge, which is the sole remedy under OPRA. Fewer challenges would inevitably lead to fewer records being voluntarily disclosed. The decline in transparency and public oversight would in turn create an environment ripe for abuse. It’s poor public policy to erode OPRA’s fee shifting provision for these reasons.