NJ OPRA Guideline Amended – Not so open anymore

By Jennifer Benthin, Verdantas

On June 5th, 2024, NJ Governor Phil Murphy signed Senate Bill No. 2930 (Second Reprint) modifying the State of New Jersey’s Open Public Records Act (OPRA) N.J.S.A. 47:1A-1 et seq.; the revisions take effect in September. OPRA is the law allowing the public access to non-confidential public records maintained by government entities in NJ, and is a backbone of real estate due diligence evaluations and litigation. In 2023 more than 250,000 requests were submitted. The changes were initially considered to reduce the overall number of requests submitted, to discourage data brokers from submitting requests for information to be sold, and to strengthen protections of confidential personal identifiers.

The changes could have unintended consequences for the real estate sector, including increased risks and costs associated with requests and more difficulty in access to records critical to due diligence efforts.

The bill includes a requirement to certify that the information received won’t be used for commercial purposes; labor organizations, political groups, non-profits, and media are exempted.

Commercial purpose is defined as, “the direct or indirect use of any part of a government record for sale, resale, solicitation, rent, or lease of a service, or any use by which the user expects a profit either through commission, salary, or fee.”

The bill could change costs to process OPRA requests. It presumes that fees charged to process requests are reasonable, if a requestor disagrees, they must present clear and convincing evidence to the contrary. This provision could discourage requestors from challenging fees charged.

Additionally, when the new legislation becomes effective in September, attorney fees will only be awarded if “the public agency has been determined to have unreasonably denied access, acted in bad faith, or willfully violated OPRA.”

Another risk to requestors is the possibility of litigation. Government entities can file suit against requestors for seeking records with “the intent to substantially impair the performance of government function.” The legislation does not define that standard. Firms that perform a high volume of transactions and their professional consultants will be at risk.

The provisions in the new law that affect ease of access could also be detrimental to industry professionals. For example, records custodians can deny requests for correspondence including letters, emails, texts, and social media posts, when details regarding job title or account, specific subject matter, and time frame are left out.

A specification within the updated legislation disallows the submittal of identical requests.

Additionally, there are specific requirements regarding OPRA submittals which are related to a legal proceeding. For example, requestors are now required to certify whether a request is associated to litigation. Requests for records that are also subject to a court order or discovery requests are no longer allowed.

As each of New Jersey’s 21 counties and 564 municipalities comes to terms with the requirements, we expect new delays and new challenges to OPRA requests. The bill is ultimately designed to increase access to files by appropriating funds to make records available online, but the change is expected to be slow.