SENATE JUDICIARY COMMITTEE

 

STATEMENT TO

 

SENATE, No. 332

 

STATE OF NEW JERSEY

 

DATED: SEPTEMBER 19, 1996

 

      The Senate Judiciary Committee reports favorably Senate Bill No. 332.

      In order to examine a public record under common law, courts required that a citizen demonstrate some "personal" or "particular" interest in the material sought to be examined. If a court determines that a party has both an interest and a need for certain documents, the court would then engage in a weighing process balancing the citizen's right to access against the public interest in confidentiality. As noted in McClain v. College Hosp, 99 N.J. 346 (1985), this weighing process in "flexible and adaptable to different circumstances and sensitive to the fact that the requirements of confidentiality are greater in some circumstances then an others." Often this process involves an in camera review of the documents sought and a release of only such information which the court deems appropriate.

      The present Right to Know Law, N.J.S.A.47:1A-1 et seq., was enacted in 1963. Unlike common law, the Right to Know Law does not require that a person seeking access to a public record demonstrate any particular need or interest in a public record in order to examine that record. However, the definition of public record under the Right to Know Law is much narrower than the common law definition of public record. Under the Right to Know Law, only documents "required by law to be made, maintained or kept on file" are deemed public records and are unqualifiedly available to all citizens for examination and copying. It should also be noted that under the Right to Know Law, documents classified as confidential by statue, regulation or executive order are not subject to public access.

      Under the Right to Know Law, public records are available for examination during regular business hours. The Right to Know Law also authorizes the custodian of a public record to charge a fee for copies of public records.

      S-332, the "Open Public Records Act," would repeal the present Right to Know Law and revise New Jersey's law with regard to access to public documents. In general, the bill expands the category of government records to which access would be guaranteed by statute and establishes more specifically the particular types of documents which, although defined as government records, may be withheld from disclosure.

      All records maintained by State, county and municipal government agencies, including independent authorities, would be available at all times for public inspection and copying and for the purchase of copies. Exceptions to the right of access are established for certain criminal intelligence and criminal investigation information, certain personal data relating to specifically identifiable individuals and certain other limited situations.

      This bill would establish detailed procedures for requesting information from public entities and for responding to requests for access. Such procedures are presently not included as part of the Right to Know Law. Under this bill, every public agency would be required to designate a custodian for its records, establish a fee schedule for the purchase of copies of records and develop a standard form for requesting access to information held by that agency. Agencies are required to respond promptly to each request by providing either the information requested or a written explanation of why the information cannot be provided.

      The bill also provides for enforcement of the right of access by filing of actions in the Superior Court. Actions contesting the denial of access are to take precedence over all other matters and are to be handled as expeditiously as possible. The custodian would have the burden of demonstrating that the denial of access is justified. This bill allows the court to award reasonable attorney fees and other reasonable litigation expenses to a member of the public who prevails in such an action. The Right to Know Law currently limits fee awards in such cases to $500.00.

      The bill would permit partial disclosure of documents when part of the material is protected from access. S-332 also allows custodians to obtain a court order protecting otherwise accessible records if the custodian can demonstrate that disclosure would cause substantial harm to the public interest.

      This bill would preserve the common law right to inspect public records. The bill would also, like the Right to Know Law, permit records to be exempted from access by statute. The bill does not, however, contain language permitting exemption to access by regulation or executive order as specifically provided in the Right to Know Law.

      This bill was prefiled for introduction in the 1996 session pending technical review. As reported, the bill includes the changes required by technical review, which has been performed.