Five Tips for Improving OPRA Compliance in 2013

OPRANew Jersey’s Open Public Records Act (OPRA) will remain one of the top compliance concerns for New Jersey municipalities in 2013. This post offers several tips in the areas that often cause the most confusion.

Understand Your Deadline: Under OPRA, record custodians have seven business days to respond to a request, unless the record is subject to immediate access. The deadline begins when the request is received. If an extension of time is needed, a written request with must be sent within the 7-day time period. It must explain why the extension is needed and provide an anticipated date upon which the records will be provided.

Determine If the Request Is Valid: In general, OPRA covers all records made, maintained, kept on file, or received in the course of official business. However, in order for a request to be valid, it must name specific identifiable government records. Therefore, if a request does not name specifically identifiable records or is overly broad, a custodian may deny access. Examples include requests that ask questions or request the custodian to perform research.

Apply OPRA Exemptions: OPRA contains 24 specific exemptions, including medical records, records subject to attorney-client privilege, personal identifying information, and certain personnel records. Despite the seemingly wide number of exemptions, record custodians are advised to conduct careful analysis, as the burden of proving lawful denial of access rests on the custodian.

Calculate Any Applicable Fees: Copying fees for paper documents are set by OPRA at $0.05 per page for letter sized pages and smaller and $0.07 per page for legal sized pages and larger. (Unless the agency can show actual copying costs exceed these amounts) Custodians are required to provide electronic records (i.e. records sent via e-mail and fax) free of charge. For documents provided in other mediums, such as DVD or computer disk, the actual cost of providing the documents may be charged. Special service charges may be assessed for “extraordinary” requests; however, they must be reasonable and based on actual direct cost (hourly rate of lowest level employee capable of fulfilling request). Examples include documents that cannot be readily copied using ordinary document copying equipment due or their size or format or documents that require an extraordinary expenditure of time and effort to accommodate the request.

Denial of Records: If a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record(s) only after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency.

For more information about responding to OPRA requests, we encourage you to contact a member of Scarinci Hollenbeck’s Public Law Group.

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