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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

- Recent Questions - Legal Newspaper Qualifications
- Access to Public Records - Miscellaneous
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- Cameras in the Courtroom - Shield Law
- Invasion of Privacy  


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