In many cases, records requested under New Jersey’s Open Public Records Act are not physically located onsite. For instance, the records may be maintained at another agency or third party, with whom the public entity has a contractual agreement.
However, as highlighted by the New Jersey Government Records Council in a recent OPRA Alert, the definition of a government record is generally not restricted by the physical location of the record itself. Rather, a government record is any record “made, maintained, kept on file…or received” in the course of official business.
New Jersey courts have generally rejected arguments by public agencies that OPRA requests cannot be satisfied because the records are not in their physical control. As noted by the Appellate Division, “Were we to conclude otherwise, a governmental agency seeking to protect its records from scrutiny could simply delegate their creation to third parties or relinquish possession to such parties, thereby thwarting the policy of transparency that underlies OPRA.”
Below are a few examples discussed in the OPRA Alert:
- In Schuler v. Borough of Bloomsbury (Hunterdon), GRC Complaint No. 2007-151 (Interim Order December 19, 2007), the GRC considered a request for records maintained by an engineer who worked for an outside engineering firm and provided services to the municipality on a contract basis. The GRC concluded that because the Engineer’s work was “directly related to and arose from business done by him on behalf of the municipality,” the requested records were subject to OPRA.
- In Burnett v. County of Gloucester, 415 N.J. Super. 506 (App. Div. 2010), the Appellate Division rejected arguments that records need not be produced because they were not in the County’s possession, but were maintained by the its insurance broker. The court held that the requested records were “made” by or on behalf of the County in the course of its official business and, therefore, still subject to OPRA.
- In Michalak v. Borough of Helmetta (Middlesex), GRC Complaint No. 2010-220 (Interim Order January 31, 2012), the GRC addressed dispatch calls stored by a neighboring municipality. Because the municipalities had entered into a shared services agreement and the records were kept pursuant to that agreement, the GRC determined that they must be provided under OPRA.
As these cases highlight, the most important question is whether the record falls under OPRA’s definition of a government record—not where it is located.
For additional information about the New Jersey’s Open Public Records Act, please contact a member of Scarinci Hollenbeck’s Public Law Group.