SENATE, No. 332

STATE OF NEW JERSEY

PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION

By Senator MARTIN

An Act concerning access to government records and repealing P.L.1963, c.73 (C.47:1A-1 et seq.).

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

    1. This act shall be known and may be cited as the "Open Public Records Act."

    2. The Legislature finds and declares it to be the public policy of this State that all State, county and municipal records shall be open at all times for inspection, examination and copying by members of the public except where a record is expressly exempted from such access by statute.

    3. As used in this act:

    "Public agency" or "agency" means any of the principal departments in the Executive Branch of State Government, and any division, board, bureau, office, commission or other instrumentality within or created by such department; the Legislature of the State and any office, board, bureau or commission within or created by the Legislative Branch; and any independent State authority, commission, instrumentality or agency. "Public agency" or "agency" also means any political subdivision of the State or combination of political subdivisions and any division, board, bureau, office, commission or other instrumentality within or created by a political subdivision of the State or combination of political subdivisions and any independent authority, commission, instrumentality or agency created by a political subdivision or combination of political subdivisions.

    "Government record" or "record" means any information maintained by a public agency in written, audio, video, electronic or other form, but shall not include any written memorial of communications received from or sent to officers or employees of the same public agency or different public agencies in the course of obtaining, providing, or attempting to obtain or provide information, except to the extent that those memorials contain factual information, or any communication covered by a privilege against disclosure under any rule of evidence established by statute or court rule.

    "Custodian of government records" or "custodian" means the head of a public agency having possession of government records or his designee or the individual having control of the government records.

    "Criminal intelligence information" means information concerning an identifiable person or group of persons collected by a criminal justice agency in an effort to anticipate, prevent or monitor possible criminal activity.

    "Active criminal intelligence information" means criminal intelligence information which relates to intelligence gathering conducted with a reasonable belief that it will lead to the detection of criminal activity.

    "Criminal investigative information" means information concerning an identifiable person or persons compiled by a criminal justice agency in the course of conducting a criminal investigation of a specific act or omission, including, but not limited to, information derived from laboratory tests, reports of investigators or informants, and any type of surveillance, but shall not mean the time, date, location and nature of reported crime; the name, sex, age and address of a person arrested or of the victim of a crime; the time, date and location of the incident and of the arrest; the crime charged; documents given or required by law or agency rule to be given to the person arrested; or information and indictments.

    "Active criminal investigative information" means criminal investigative information which concerns an ongoing investigation which is continuing with a reasonable, good faith anticipation of securing an arrest or prosecution in the foreseeable future.

    4. a. The custodian of a government record shall permit the record to be inspected, examined and copied by any person at any reasonable time and location consistent with this act. Copies of a government record may be purchased by any person upon payment of the fee prescribed by law or, if a fee is not prescribed by law, upon payment of the actual cost of duplicating the record. The actual cost of duplicating the record shall be the cost of materials and supplies used to make a copy of the record, but shall not include the cost of labor or other overhead expenses associated with making the copy. Except as otherwise provided by statute or regulation, however, in no event shall the fee assessed for the duplication of a government record embodied in the form of printed matter exceed the following: first page to tenth page, $0.50 per page; eleventh page to twentieth page, $0.25 per page; all pages over twenty, $0.10 per page.

    Prior to January 10 in each calendar year a public agency shall adopt a schedule establishing the actual costs of duplicating records, embodied in the form of printed matter, for which no fee is prescribed by law, which shall be in effect for a period of one year. The fee established for the purchase of copies of county maps or aerial photographs from any county officer whose office is established by the New Jersey Constitution may, however, include a reasonable charge for labor and overhead associated with duplicating a record. Unless otherwise provided by law, any fees payable under this section shall be collected, deposited and accounted for in the manner prescribed for other operating funds of the public agency.

    b. Whenever the nature, format, manner of collation, or volume of government records embodied in the form of printed matter to be inspected, examined or copied pursuant to this section is such that the records cannot be reproduced by ordinary document copying equipment in ordinary business size, the agency may charge, in addition to the actual cost of duplicating the record, a special service charge, which shall be reasonable and shall be based upon the expense associated with these services.

    c. A custodian may, in appropriate circumstances and if the requestor so desires, permit access to government records by remote electronic means or provide the requestor with a computer copy of the records. The fee established by a public agency for this type of access shall include direct and indirect costs, but shall not exceed the reasonable cost to the agency of making such access available to the requestor or of creating and transmitting the computer copy, electronically if possible and the requestor so desires, to the requestor. The custodian shall take steps to prevent unauthorized electronic access or alteration of public records.

    5. a. The custodian of each public agency shall adopt a form for the use of any person who requests access to a government record held by the public agency. The use of such form shall be at the option of the requestor and a verbal request shall be accepted by any public agency. The form shall provide for indication of the name, address and phone number of the requestor and a brief description of the government records sought, but the requestor shall have the option not to supply a name, address or phone number. The form shall include space for the custodian to indicate which records will be made available, when the records will be available and the fees to be charged. The form shall also include the following:

    (1) specific directions and procedures for requesting records;

    (2) a schedule of fees to be charged;

    (3) a statement as to whether prepayment of fees or a deposit is required;

    (4) the time period within which the public agency is required by this act to make the records available;

    (5) a statement of the requestor's right to appeal a decision by the public agency to deny access and the procedure for filing an appeal pursuant to section 8 of this act;

    (6) space for the custodian to list reasons when a request is denied in whole or in part;

    (7) space for the requestor to sign and date the form; and

    (8) space for the custodian to sign and date the form when the request is complied with or denied.

    b. Requests for access to government records may be written or verbal and shall be hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian. If the custodian is unable to comply with a request for access, he shall indicate the reasons therefor on the request form and promptly return it to the requestor. When a custodian denies access based upon a statutory exception to the right of access established by this act, he shall cite the specific statute section as part of his denial. The custodian shall advise the requestor in writing of the requestor's right to appeal and the manner in which an appeal may be filed. The custodian shall sign and date the form. If the government records requested are temporarily unavailable because they are in use or in storage, the custodian shall so advise the requestor in writing on the form as well as the time and place when the information will be available. When a request for access to government records would substantially disrupt agency operations, the custodian may deny access to the records after attempting to reach a reasonable solution with the requestor which accommodates the interests of the requestor and the agency.

    6. Any officer or employee of a government agency who receives a request for access to a government record shall forward the request or direct the requestor to the custodian of the records.

    7. A custodian of government records shall provide the records or deny a request under this act for access to government records as soon as reasonable. It shall be presumed that access to government records required or authorized to be provided under the provisions of this act shall be granted immediately. Whenever there exists a bona fide question involving a legal opinion as to whether such access is required to be so provided or the time required for retrieval and duplication of the records is extraordinary, the custodian shall: a. within 48 hours of receiving the request, determine the existence of such question or such extraordinary requirement of time and, if the requestor has supplied the custodian with sufficient information to enable the custodian to contact the requestor, notify the requestor of the determination, or if not, be prepared to provide notice of the determination upon inquiry by the requestor; and b. provide the records or deny the request not later than 10 days after receiving the request.

    8. a. A person who is denied access to government records by the custodian of the records may appeal the custodian's decision by filing an action in Superior Court.

    In any such action, the court shall proceed in a summary manner. Actions brought pursuant to this act shall take precedence over all other matters and shall be handled as expeditiously as possible. The government agency shall have the burden of proving that its denial of access is authorized by this act. If it is determined that access has been improperly denied, the court shall order that access be allowed.

    b. Whenever a custodian determines that disclosure of a government record which is ordinarily accessible to the public pursuant to this act would cause substantial harm to the public interest, the custodian may apply to the Superior Court for an order authorizing denial of access. The court may issue such an order if it finds, after a hearing, that permitting access would cause substantial harm to the public interest. The burden of proof shall be on the custodian. Any person who has sought access to a record with regard to which the custodian has filed an action shall receive notice of the hearing and shall have the opportunity to be heard and to be represented by counsel at the hearing.

    c. When a government agency does not prevail in any proceeding brought pursuant to this act, the court may assess against it reasonable attorney's fees and other reasonable litigation expenses.

    9. a. Access to government records shall be permitted during the regular business hours of the public agency having custody of the records. A person shall have the right to copy a record by hand under appropriate supervision by the custodian or the custodian's designee and consistent with the need to preserve the original. A person shall have the right to use his own duplicating process to copy a government record if the custodian finds that there is no risk of damage to the document and that this would not be incompatible with the operation of the public agency.

    b. Government records shall be kept in the buildings in which they are ordinarily used. Records which are worn, mutiliated, damaged or difficult to read shall be copied or repaired, as appropriate. Records may be removed from the building in which they are ordinarily kept while being copied or repaired. The custodian shall certify that any copy of a record is an accurate copy of the original.

    10. When the custodian of a government record asserts that part of a particular record is exempt from public access pursuant to this act, the custodian shall delete or excise from the record that portion which is exempt from access and shall permit access to the remainder of the record.

    11. In any action in which the decision of a custodian to deny access to a government record is at issue, the record or part thereof in question shall be submitted to the court for an inspection in camera as the court determines to be necessary. If the court determines that the government record is not exempt from disclosure, it shall order the record to be produced for public access.

    12. When a custodian denies access to a government record on the grounds that it is exempt from public disclosure pursuant to this act, the record shall be maintained on file by the custodian for at least 30 days after access is denied. No government record shall be altered or destroyed during the pendency of an action seeking access to the record.

    13. a. Except as provided under subsection e. of this section with respect to the disclosure of personal records to the individual to whom those records pertain, an agency shall disclose or authorize the disclosure of a personal record to any person when the disclosure is:

    (1) the name, compensation, job title, business address, business telephone number, and job description; to the extent necessary to demonstrate compliance with the requirements for holding the position in the agency, the education, training background, and previous work experience; and dates of first and last employment, of any present or former officer or employee of the agency;

    (2) pursuant to the prior written consent of the individual to whom the record refers;

    (3) information collected and maintained for the purpose of making information available to the general public;

    (4) information contained in or compiled from a transcript, minutes, report, or summary of a proceeding open to the public;

    (5) pursuant to federal law or a State law that expressly authorizes disclosure;

    (6) pursuant to a showing of compelling circumstances affecting the health or safety of any individual, in which case the agency shall make reasonable efforts to notify the individual to whom the record refers;

    (7) pursuant to an order of a court in which case the agency shall notify the individual to whom the record refers by mailing a copy of the order to the individual's last known address;

    (8) pursuant to a subpoena from either house of the State Legislature, the Joint Legislative Committee on Ethical Standards or any committee or subcommittee of the General Assembly or Senate, in which case the agency shall notify the individual to whom the record refers by mailing a copy of the subpoena to the individual's last known address;

    (9) information from motor vehicle registration lists which is necessary for recall purposes;

    (10) pursuant to a subpoena issued by the State Commission of Investigation, in which case the agency shall notify the individual to whom the record refers by mailing a copy of the subpoena to the individual's last known address; and

    (11) in any other case, not a clearly unwarranted invasion of personal privacy.

    b. Except as provided in subsection a. of this section, no agency shall be required under this act to disclose information subject to a significant privacy interest unless the public interest in disclosure is compelled by an imminent threat to public health and safety. Individuals shall be presumed to have a significant privacy interest in the following matters only:

    (1) information relating to medical, psychiatric or psychological history, diagnosis, condition, treatment, or evaluation, other than directory information concerning an individual's presence at any facility;

    (2) information compiled and identifiable as part of an investigation into a possible violation of criminal law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation;

    (3) information relating to eligibility for social services or welfare benefits or to the determination of benefits or to the determination of benefit levels;

    (4) information in an agency's personnel file, or applications, nomination, recommendations, or proposals for public employment or appointment to a governmental position, except information relating to the status of any formal charges against the employee and disciplinary action taken;

    (5) information relating to an individual's nongovernmental employment history, except as necessary to demonstrate compliance with requirements for the particular position;

    (6) information in an income or other tax return measured by items of income or gathered by an agency for the purpose of administering the tax;

    (7) information describing a natural person's finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or credit worthiness;

    (8) information comprising a personal recommendation or evaluation; or

    (9) information compiled as part of an inquiry into an individual's fitness to be granted or to retain a license, except:

    (a) the record of any proceeding resulting in revocation or suspension of a license and the grounds for revocation or suspension;

    (b) information on the employment and required insurance coverages of licensees; and

    (c) the record of complaints, including all dispositions.

    c. In addition to disclosures permitted under subsection a., an agency may disclose or authorize the disclosure of an individually identifiable record if made to:

    (1) another agency if disclosure is:

    (a) certified by the requesting agency as being necessary to the performance of its duties and functions; and

    (b) compatible with the purpose for which the information in the record was originally collected or obtained;

    (2) the State archives for purposes of historical preservation or administrative maintenance;

    (3) another agency, another state, or the federal government, if disclosure is:

    (a) for the purpose of a civil or criminal law enforcement investigation;

    (b) specifically authorized by statute or compact; and

    (c) pursuant to agreement or written request;

    (4) an agency for transmission to courts of this State, another state, or the United States for presentence or probationary purposes;

    (5) a foreign government pursuant to executive agreement, compact, treaty, or statute;

    (6) a criminal law enforcement agency of this State, another state, or the federal government if the information requested is limited to an individual's name and other identifying particulars, including present and past addresses and present and past places of employment;

    (7) authorized officials of the federal government or of an agency of this State for audit or review purposes if:

    (a) the audit or review is expressly authorized by law; and

    (b) disclosure is certified by the requesting agency as being necessary to the performance of audits or reviews; and

    (8) the United States Bureau of the Census for the purpose of planning or carrying out a census, survey, or related activity under Title 13 of the United States Code.

    d. An agency receiving information pursuant to subsection c. of this section shall be subject to the same provisions concerning disclosure of the information as the originating agency.

    e. Except as provided in this section, an individual or an individual's duly authorized representative may examine or copy, during the regular business hours of the agency, any accessible record that pertains to the individual. In implementing the rights under this subsection, the agency shall follow the procedures established herein, subject to the requirement that, upon receipt of a request to examine or copy an accessible record, the agency shall verify the identity of the requester.

    f. An agency is not required by subsection e. of this section to disclose:

    (1) information that may be withheld pursuant to section 14 of this act, except to the extent that the information sought was submitted by the requester;

    (2) information collected and used solely to evaluate the character and fitness of persons, but only to the extent that disclosure would identify the source of the information; or

    (3) information that does not relate directly to the requester and which, if disclosed, would constitute a clearly unwarranted invasion of another individual's personal privacy.

    g. Nothing contained in this section shall be construed as abridging any statute that authorizes an agency to withhold information from the parent or legal guardian of a child.

    h. If an individual requests an accessible record which contains both public information and information the agency is not required to disclosure, the agency shall provide the public information contained in the record after deleting the undisclosable material, provided that the undisclosable material may be severed from the public information.

    14. Nothing contained in this act shall be construed to require disclosure of:

    a. active criminal intelligence information and active criminal investigative information;

    b. any information revealing the identity of a confidential informant or a confidential source;

    c. any information revealing a criminal justice agency's surveillance, security or investigative techniques or procedures or personnel. Notwithstanding anything contained herein, any comprehensive inventory of State and local law enforcement resources compiled pursuant to statute and any comprehensive policies or plans compiled by a criminal justice agency pertaining to the mobilization, deployment, or tactical operations involved in responding to emergencies are exempt from the provisions of this act and shall be unavailable for inspection except by personnel authorized by State or local law enforcement agency, the office of the Governor, the Attorney General, or the Department of Community Affairs or by court order;

    d. any information revealing undercover personnel of any criminal justice agency not previously disclosed;

    e. any criminal intelligence information or criminal investigative information including the photograph, name, address, or other fact or information which reveals the identity of the victim of the crime of sexual battery; the identity of the victim of the crime of lewd, lascivious, or indecent assault upon or in the presence of a child; and any criminal intelligence information or criminal investigative information or other criminal record, including those portions of court records, which may reveal the identity of a person under the age of 18 who is a victim of any sexual offense;

    f. any criminal intelligence information or criminal investigative information which reveals the personal assets of the victim of a crime, other than property stolen or destroyed during the commission of the crime;

    g. inter-agency or intra-agency advisory, consultative, or deliberative material, other than factual information or final policy determinations, if communicated for the purpose of decision-making;

    h. material prepared in anticipation of litigation which would not be available to a party in litigation with the agency under the rules of pretrial discovery for actions in a court of this State;

    i. materials used to administer a licensing, employment, or academic examination if disclosure would compromise the fairness or objectivity of the examination process;

    j. information which, if disclosed, would frustrate government procurement or give an advantage to any person proposing to enter into a contract or agreement with an agency including information involved in the collective bargaining process provided that a roster of employees shall be open to inspection by any organization which is allowed to challenge existing employee representation;

    k. information identifying real property under consideration for public acquisition before acquisition of rights to the property, or information not otherwise available under the laws of this State pertaining to real property under consideration for public acquisition before making a purchase agreement;

    l. administrative, technical or other information including software, operating protocols and employee manuals, the disclosure of which would jeopardize the security of a record-keeping system;

    m. proprietary information, including computer programs and software and other types of information manufactured or marketed by persons under exclusive legal right, owned by the agency or entrusted to it;

    n. trade secrets or confidential commercial and financial information obtained, upon request, from a person;

    o. library, archival, or museum material contributed by private persons to the extent of any lawful limitation imposed on the material;

    p. any advisory opinion rendered by the Joint Legislative Committee on Ethical Standards; or

    q. information that is expressly made nondisclosable or confidential under federal or State law or protected by the rules of evidence, whether or not a proceeding is then pending.

    Nothing contained in this section shall be construed to exempt from section 4 of this act a public record which was made part of a court file and which is not specifically closed by order of a court.

    15. Nothing contained in this act shall be construed as limiting the common law right of access to public records.

    16. P.L.1963, c.73 (C.47:1A-1 et seq.) is repealed.

    17. This act shall take effect on the 60th day after enactment, except that public agencies may take such anticipatory administrative action in advance as shall be necessary for the implementation of the act.

Revises law governing access to public records.