CLOSING ARGUMENTS
OPRA – It’s as easy as 1-2-3
No officer has ever walked into the chief’s
office and said, “OPRA is easy, I’d love to be the
department’s custodian of records.”
NJSA 47:1A-1, commonly known as The New
Jersey Open Public Records Act (OPRA), was
intended to make government more transparent
to the citizens it serves.
However, it is a complex and confusing law
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that
has stumped custodians of records and
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attorneys alike. The statute is filled with hidden
pitfalls that can easily trip up even the most seasoned records custodian.
But, with some guidance and training, a records custodian can
traverse through the OPRA battlefield unscathed. Here’s a step-bystep plan to help:
Step 1: Get training and stay updated
There are many courses and seminars offered throughout the
state. As a custodian of records, you will need to deal with not only
black-and-white requests, but also those that are various shades
of gray.
The more classes you take, the more prepared you will be to
deal with the complicated requests you will receive. Look for
classes offered by the Government Records Council (GRC), attorneys, and law enforcement officers. Each one of these
professionals will bring a different perspective to this complex
topic. The more perspectives you are exposed to, the more tools
you will have at your disposal when dealing with requests.
Staying updated on recent GRC and Superior Court decisions is
necessary to successfully completing your duties. The GRC publishes its decisions on its website, http://www.nj.gov/grc/decisions/index.html, and has a search engine that allows custodians
to do keyword searches to find cases that may be similar to a
request they are processing. The municipal attorney will also have
access to recent Superior Court decisions that could affect the
request.
Step 2: Know the 25 exemptions
OPRA outlines 25 exemptions to the release of records. Not all
of these apply to law enforcement, but you need to be familiar
with those that do; they are your guiding light.
Probably the most common, yet most complicated, exemption
that applies to law enforcement is the criminal investigatory
record. Criminal investigatory records are defined as, “Records
which are not required by law to be made, maintained or kept on
file that are held by a law enforcement agency which pertain to
any criminal investigation or related civil enforcement proceeding.”
Most recently, the Appellate Division set forth guidance as to
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what records are considered criminal investigatory records in the
case of North Jersey Media Group v. Lyndhurst, 441 NJ Super 70.
This case was recently accepted by the NJ Supreme Court and
could potentially change the way criminal investigatory records
are defined.
Every denial or redaction must be firmly grounded in one or
more of the 25 exemptions. Additionally, you must cite the reason
for denial or redaction to the requestor in your written response.
Remember, if a proper request for records does not fall under one
of the 25 exemptions, the records should be provided to the
requestor.
Step 3: Establish a relationship
Having a relationship with your municipal clerk and attorney is
imperative in this process. You shouldn’t be trying to establish a
trusting relationship during the statutory seven-business-day
response time. You should meet with them and establish a bond
now when there isn’t a pending request. In other words, you
shouldn’t be meeting your teammates for the first time on game
day.
Generally, the municipal clerk is designated by ordinance as the
custodian of records for the entire municipality. F ܈ \