S1557

SENATE, No. 1557

STATE OF NEW JERSEY

INTRODUCED OCTOBER 3, 1996

By Senator BUBBA

An Act concerning access to public records and amending P.L.1963. c.73.

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

1. Section 2 of P.L.1963, c.73 (C.47:1A-2) is amended to read as follows:

2. Except as otherwise provided in this act or by any other statute, resolution of either or both houses of the Legislature, executive order of the Governor, rule of court, any federal law, regulation or order, or by any regulation promulgated under the authority of any statute or executive order of the Governor, all records which are required by law to be made, maintained or kept on file by any board, body, agency, department, commission or official of the State or of any political subdivision thereof or by any public board, body, commission or authority created pursuant to law by the State or any of its political subdivisions, or by any official acting for or on behalf thereof (each of which is hereinafter referred to as the "custodian" thereof) shall, for the purposes of this act, be deemed to be public records. Every citizen of this State, during the regular business hours maintained by the custodian of any such records, shall have the right to inspect such records. Every citizen of this State shall also have the right, during such regular business hours and under the supervision of a representative of the custodian, to copy such records by hand, and shall also have the right to purchase copies of such records.

Access to records which are readily accessible to the custodian thereof shall be provided immediately. If the records requested are not readily accessible to the custodian at the time that a request for access is made because the records are in storage, in active use, or otherwise unavailable, the custodian shall provide the citizen who requested the records with a written statement which indicates why the records are unavailable and establishes a date and time when the records will be available. Access to records which are not readily accessible to the custodian at the time that a request for access is made shall be provided within two business days except that such period may be extended by up to 14 additional business days if the custodian makes a determination, and informs the citizen in writing, that the request is broadly stated and encompasses all or substantially all of a large category of records and is without sufficient specificity to allow the custodian to reasonably provide access within the two-day period; or that the request is broadly stated and encompasses all or substantially all of a large category of records and during the two-day period the custodian must devote all or substantially all of the custodian's resources to meeting deadlines for other requests for access to records or other compelling duties.

A custodian of records who fails to allow access to records within these time periods shall be deemed to have denied the requestor's right to inspect, copy or purchase a copy of public records and the custodian and the public entity on behalf of which the custodian acted shall be liable to the penalties provided by section 4 of P.L.1963, c.73 (C.47:1A-4).

Copies of records shall be made available upon the payment of such price as shall be established by law. If a price has not been established by law for copies of any records, the custodian of such records shall make and supply copies of such records upon the payment of the following fees which shall be based upon the total number of pages or parts thereof to be purchased without regard to the number of records being copied:

First page to tenth page ..... $0.75 per page,

Eleventh page to twentieth page..... $0.50 per page,

All pages over 20 ......... $0.25 per page[,];

except that the fee shall be $0.05 per page in the case of records which are printed directly from a computerized database.

If the custodian of any such records shall find that there is no risk of damage or mutilation of such records and that it would not be incompatible with the economic and efficient operation of the office and the transaction of public business therein, he may permit any citizen who is seeking to copy more than 100 pages of records to use his own photographic process, approved by the custodian, upon the payment of a reasonable fee, considering the equipment and the time involved, to be fixed by the custodian of not less than $10.00 or more than $50.00 per day.

(cf. P.L.1991, c.177, s.18)

2. Section 4 of P.L.1963, c.73 (C.47:1A-4) is amended to read as follows:

4. a. Any such citizen of this State who has been or shall have been denied for any reason the right to inspect, copy or obtain a copy of any such record as provided in this act may apply to the Superior Court of New Jersey by a proceeding in lieu of prerogative writ for an order requiring the custodian of the record to afford inspection, the right to copy or to obtain a copy thereof, as provided in this act. A plaintiff in whose favor such an order issues shall be entitled to taxed costs and [may] shall be awarded a reasonable attorney's fee [not to exceed $500.00]. A defendant who prevails in preventing the issuance of such an order shall be entitled to taxed costs.

In addition, if the court determines that a custodian of public records has denied a citizen the right to inspect, copy or obtain a copy of a record, it shall impose civil fines upon both the custodian and the public entity on behalf of which the custodian acted in an amount of not less than $1,000 nor more than $5,000 for each record access to which was denied. Any such penalty shall be collected as provided in "the penalty enforcement law," N.J.S.2A:58-1 et seq.

b. If the custodian of a record determines that complying with a citizen's request for access to a record would cause substantial injury to the public interest, the custodian may apply to the Superior Court of New Jersey for an order restricting disclosure of the record. A hearing on the application shall be held on an expedited basis. In an appropriate case, the court may issue an order that disclosure of the record would cause substantial injury to the public interest. The burden of proof in such an action shall be upon the custodian. The citizen who requested access to the record shall have the opportunity to appear and be heard.

(cf. P.L.1981, c.338, s.1)

3. This act shall take effect immediately.

STATEMENT

This bill would amend the law governing the public's right to inspect, copy or purchase copies of public records to provide that access by a citizen to records which are readily accessible to the custodian thereof shall be provided immediately. If the records requested are not readily accessible to the custodian at the time that a request for access is made because the records are in storage, in active use, or otherwise unavailable, the custodian shall provide the citizen who requested the records with a written a statement which indicates why the records are unavailable and establishes a date and time when the records will be available. Access to records which are not readily accessible to the custodian at the time that a request for access is made shall be provided within two business days except that such period may be extended by up to 14 business days if the custodian informs the requestor in writing that the request is broadly stated, involves a large category of records and is not sufficiently specific to allow the custodian to reasonably provide access within the two-day period; or that the request is broadly stated, involves a large category of records and during the two-day period the custodian must devote resources to meeting deadlines for other requests for access to records or other compelling duties.

At present, the law provides that a citizen who is denied access to public records may apply to the Superior Court for an order requiring the custodian to afford inspection, the right to copy or to obtain a copy of the records. Existing law also provides that a successful plaintiff may be awarded a reasonable attorney's fee not to exceed $500. The bill makes the awarding of attorney's fees mandatory and eliminates the $500 limit on attorney's fees. It also provides that if the court determines that a custodian of public records has denied a citizen's request for access to records, the court shall impose civil fines on both the custodian and the public entity on behalf of which the custodian acted in an amount of not less than $1,000 nor more than $5,000 for each record to which access was denied. The bill would allow a custodian of a public record to apply to the Superior Court for an order restricting access to a public record when disclosure thereof would cause substantial injury to the public interest.

In addition, the bill establishes the fee for obtaining records which are printed directly from a computerized database at $0.05 per page.

Provides for immediate public access to public records in most cases; establishes fines for denial of right of access.