Knowledge Corner for Citizen Activists

owl on books

The following is a collection of useful tips for the informed open government activist.  Sign up for email here to stay informed. Also, like us on Facebook and follow us on Twitter!

Useful OPRA cases by subject can be found HERE (revised 6/1/2015). However, this is not an exhaustive list of cases or subject areas. Some specific topics are also listed below.

Government records held by third parties – It’s the records custodian’s duty to retrieve those records for you.

Extensions – You have a say in how long it takes to get public records.

Redactions – You have a right to know why.

Who can sue under OPRA? – Judge says public agencies can’t sue under OPRA, only a records requestor can.

Joint Meetings of Public Agencies – Concerns the application of OPRA and OPMA to joint meetings of public agencies, in particular a joint meeting of a school board and municipal governing body.

Copyrights / Trademarks – “No material produced by a public agency is subject to copyright or trademark restrictions. There could be other theoretical restrictions on copying.  A good example would be that we couldn’t use info that is in fact duly trademarked and pass it off as our own (such as the web designer’s mark). But, for the most part, all of the information is public.”  -W. Luers

Custodian’s response: “See Website” – In March 2014, the GRC reversed itself and held that a records custodian can respond to an OPRA request by giving specific directions to the location of a requested record online, including the specific link. The records custodian must still provide a hardcopy if the requestor cannot access the Internet. Importantly, if the requestor can access the Internet, then providing the link fulfills the records custodian obligation under OPRA. The decision is here.

An email sent to a quorum is a public meeting! – In a case concerning emails on which a quorum of a public body was copied, a judge has ruled, “This is a violation of the Open Public Meetings Act… The OPMA is specific in its definition of a public body ‘meeting’ to include any gathering…which is attended by or open to all members of the public body held with intent to discuss or act upon a specific public business of that body.”

Restricting public comment based on viewpoint – On 8/13/2015, the ACLU-NJ sent Colts Neck Township a letter critical of its practices to restrict public comment based on viewpoint and to include only favorable viewpoints in the meeting minutes, both counter to the OPMA and principle of free speech. Read the letter and share it!

No-bid contract price must be disclosed – Public bodies must publish the amounts of no-bid contract awards. This letter, written by NJFOG Treasurer John Paff, highlights a very common problem of public bodies withholding from their newspaper publications the dollar amounts of no-bid contracts awarded to professionals such as lawyers and engineers.   

Settlement Agreements are public records – In 2010, the New Jersey Supreme Court made it clear that settlement agreements that resolve civil lawsuits against New Jersey public agencies are public records.  See Asbury Park Press and John Paff v. Monmouth County.  As for settlement agreements that resolve governmental disputes before they are litigated, there are presently no published New Jersey cases on point.  However, a December 17, 2014 unpublished Law Division opinion in John Paff v. Township of Chatham, et al, Docket No. MRS-L-1793-14 held that such settlement agreements must be disclosed.

RECORDS IN ELECTRONIC DATABASES – The New Jersey Supreme Court’s 6/20/2017 decision in John Paff v. Galloway Township — establishing that information in an electronic database is a public record — has helped to pave the way for release of a broad array of records under the Open Public Records Act. For example, Paff used the decision to obtain an Office of Administrative Law case log, which is not available online anywhere currently (as of 8/4/2017).

Emailing or faxing an OPRA request – A public agency must allow a requestor to deliver an OPRA request via fax or email, or both, but not neither. Insisting on hand delivery or regular mail “represents an unreasonable obstacle on access,” said the Government Records Council (GRC) in a 2015 ruling clarifying earlier GRC and Appellate Division decisions.

What is a “payroll record” under OPRA and what type of information does it disclose? – Citizens who suspect that a public employee may be on extended leave may want to request his or her “payroll record” in order to confirm or dispel that belief and to determine whether the leave, if taken, is paid or unpaid. This article examines what a “payroll record” is and gives step-by-step details on how one was obtained.