It’s been 20 years and OPRA has gotten its first facelift.  Yesterday, Governor Murphy signed the controversial Senate Bill that revamped the Open Public Records Act for the first time since it was enacted in 2004.  Much has happened since 2004- the Red Sox won the World Series, which had not happened for that team since 1918 (not that this Phillies fan cares too much about that); Facebook and YouTube were launched, revolutionizing social networking, online communication, and oversharing; and Apple released the first iPhone, ushering in the era of smartphones with touchscreens and apps that consume our everyday lives and expose an individual’s personal identifying information.  Many would disagree with the characterization of the OPRA bill in the headline of this blog, but having assisted many municipalities and other public entities with OPRA responses, I can tell you that not all requests are made with the good intention of exposing government corruption.

To satisfy all parties, this Bill would have to balance, in perfect equipoise, the need for transparency in government processes, curtail commercial requestors from using OPRA to data mine for business solicitations, and clarify some of the confusing aspects of the law (of which there were many), all while building in additional protections for an individual’s personal privacy.  While that is a tall order to fill, the new Bill achieves many of those goals: 

• It defines personal identifying information and specifically permits redactions for month and day of birth, personal email addresses, the number portion of a person’s primary and secondary home street address, personal identifying information about minors, and information protected under HIPPA;
• Protects a citizen’s personal information provided to the government when receiving updates from the government;
• Allows a public entity to sue requestors who file harassing requests that cause a substantial interruption of government functions
• Expands the “security measures” exemption to minimize a requestor’s ability to identify potential gaps in security coverage of public buildings
• Allows the already overburdened custodians to deny duplicative requests
• Allows custodians to provide a link to a website rather than providing the actual documents
• Requires the GRC (Government Records Counsel) to update its website to better assist the public and create a searchable database of OPRA cases so the public can see how those matters were resolved
• Requires the GRC to use videoconferencing and conduct virtual meetings and hearings to allow public access to their proceedings
• Allows custodians to deny requests by data brokers and prohibits the requestor from selling the data mined through the records request, clamping down on for-profit requests

Reasonable minds will agree that these improvements to OPRA benefit the public, save time (and therefore money), while simultaneously creating no barrier to governmental transparency. The controversy over this Bill, including the change to fee shifting, will undoubtedly continue a cantankerous dialogue amongst OPRA litigators.  Under the current law, the award of attorney’s fees is mandatory, as has always been the case.  But now, instead of automatically imposing attorney’s fees if the requestor is the prevailing party, fee shifting occurs only where there is bad faith by the public custodian, a knowing and willful violation of OPRA, or an unreasonable denial of access.  This is a welcome and warranted relief to many custodians who bore the consequences of litigation that occurred as a result of an honest mistake in responding to an OPRA request.  It also relieves a previously unreasonable burden borne by the public entity.

As noted in the beginning of this article, much can change in 20 years.  Heck, a lot changes in 20 months. Revisions were warranted.   And as is the case with all facelifts (so they say), there will be some growing pains. Did the new Bill achieve that perfect balance? Who knows.  Time will tell how these new changes will impact both the requestors who are rightfully seeking transparency of our governmental agencies and the custodians who steadfastly seek to respond honestly to the voluminous requests they receive on a daily basis.  But, as we prepare for the new Bill to go into effect 90 days from now, Parker McCay’s OPRA Practice Group stands ready to assist clients in navigating this new path forward.