Navigating the 2024 Amendments to New Jersey’s Open Public Record Act: Key Changes and Implications for Access and Compliance

By Walter M. Luers, Esq. & Christina N. Stripp, Esq.

On September 3, 2024, the 2024 amendments to the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (“OPRA”), which was signed into law on June 5, 2024 by Governor Murphy, became effective.

This article discusses a few of the most important implications of these amendments of which practitioners should be aware, including those that set important deadlines, and those which change how practitioners will be able to use OPRA going forward.

1. Changes to Mandatory Fee-Shifting

In a major change, the Legislature removed mandatory fee-shifting for all prevailing requestors. Under the amendments, “[a] requestor who prevails in any proceeding may be entitled to a reasonable attorney’s fee.” N.J.S.A. 47:1A-6 (prior to these amendment, the language was “shall”) (emphasis added). If a court f inds that a public agency “unreasonably denied access, acted in bad faith, or knowingly and willfully violated” OPRA, then the award becomes mandatory.

Based on early returns, public agencies are taking the view that this language means that an award of counsel fees to prevailing plaintiffs is discretionary. But such a view is contrary to New Jersey cases that have interpreted “may” language in remedial legislation, such as the New Jersey Civil Rights Act. In that context, “[f]ees are the rule, rather than the exception, and the special circumstances exception should be applied only in unusual cases.” WHS Realty Co. v. Town of Morristown, 323 N.J. Super. 533, 578 (App. Div. 1999). We expect that this issue will be presented to New Jersey’s appellate courts or possibly even our Supreme Court.

2. Limitations on the Use of OPRA by a Party to a Legal Proceeding

In a second major change which will have sweeping implications for practitioners who rely upon OPRA in aid of discovery, the new post-amendment OPRA bars parties to a “legal proceeding” from “request[ing] a government record if the record sought is the subject of a court order, including a pending discovery request[.]” N.J.S.A. 47:1A-5(g).

Requestors are now required to certify “whether the government record is being sought in connection with a legal proceeding” and must identify that proceeding for their request to be processed. However, the amended OPRA does not define “legal proceeding,” and this requirement applies regardless of whether the public agency is involved in the proceeding. While OPRA does define a “party” to a legal proceeding as including “any party subject to a court order, attorneys representing that party, and any agents acting on behalf of that party,” this broad definition will make it challenging for requestors to circumvent the new restrictions to use OPRA as a discovery tool. Consequently, OPRA’s utility for discovery during active legal proceedings will likely be greatly reduced, if not eliminated entirely.

Workarounds do exist, however. For instance, it stands to reason that the use of OPRA prior to the initiation of a legal proceeding should increase. Once a case is underway, practitioners can choose to utilize subpoenas to obtain documents and information from public agencies. Additionally, since the recent OPRA amendments do not restrict requests made under the common law right of access, this option remains a viable tool for obtaining public records.

3. New “Commercial Purpose” Category

T he amendments introduce a new category of requestor, known as the “commercial purpose” requestor, which is defined by the intended use of the requested records. N.J.S.A. 47:1A-5(f).

All requestors must now certify in their OPRA request whether the record will be used by themselves or another person for a commercial purpose. A requestor who “intentionally” fails to certify that a request is for a commercial purpose may be fined a civil penalty of $1,000 for the first offense, $2,500 for the second offense, and $5,000 for each subsequent offense. The Superior Court has jurisdiction to impose these penalties. N.J.S.A. 47:1A11.

This category encompasses not only businesses but also individuals who plan to use the records for “sale, resale, solicitation, rent, or lease of a service,” or for any purpose that could result in profit through commission, salary, or fees. However, exemptions apply: journalists, news organizations, educational, scientific, and scholarly institutions, government entities, political candidates and committees, labor unions, and nonprofits that do not sell the records for a fee are not classified under this “commercial purpose” category. Additionally, some signatories to collective bargaining agreements may be exempt as well. N.J.S.A. 47:1A-1.1.

One issue raised by the commercial purpose rule, and which has yet to be decided by any court, is whether an attorney in private practice who makes a request on behalf of a client has a “commercial purpose,” if the client does not have a commercial purpose.

In reality, the consequences of a request being categorized as “for a commercial purpose” are somewhat limited. First, the deadline for most records custodians to respond to commercial requests will be 14 business days, rather than 7 business days, and some fire districts will have an additional 7 business days (for a total of 21 days to respond). Second, for a premium of “two times the cost of the production of the record,” commercial requestors may demand that records custodians provide the records within 7 business days.

As such, if a practitioner or requestor is unsure about whether their request fall sunder this “commercial purpose” category, it is likely advisable for the requestor to err on the side of caution and elect the commercial purpose.

4. New Retroactive Standing Requirement

Under previous case law, anonymous OPRA requestors could not enforce their requests anonymously in court unless a specific statute, court rule, or a “compelling reason” justified it (as outlined in A.A. v. Gramiccioni, 442 N.J. Super. 276, 284 (App. Div. 2015)). The recent OPRA amendments have essentially codified this principle.

Now, for any case currently pending before the Government Records Council or Superior Court (including appeals), if the original requestor filed using an anonymous or f ictitious name, they must amend their filing to provide their real name and mailing address by December 2, 2024, which is 90 days after the amendments’ effective date. Failure to comply with this requirement may result in the court dismissing the complaint with prejudice at the request of the records custodian.

This new requirement presents significant challenges for attorneys representing clients whose identities are protected by state or federal laws or court rules, such as students, parents of students with disabilities, and crime victims. The amendment obliges both plaintiff and defense attorneys to examine their ongoing OPRA cases to assess whether they need to comply with this disclosure requirement. Attorneys must then consider options: amending complaints to include the name and address of protected individuals, requesting permission to file under seal, seeking alternative relief, or potentially withdrawing the complaint altogether to avoid compromising protected identities.

5. Special Service Charges

T he recent amendments also significantly changed how special service charges are handled when public agencies respond to records requests.

Previously, if an agency imposed special service fees, it had to justify the cost, showing that the fee was necessary to fulfill the request (especially if extensive work or resources were needed, like in the case of large or complex data retrievals). Now, however, these special service charges are considered “presumptively reasonable.”  This change makes it more difficult for requestors to challenge the fees, as they must gather enough evidence to prove that the fee imposed by the agency is excessive or unjustified.

The practical effect of this amendment is that public agencies are less likely to face financial disputes over these fees, potentially encouraging them to deter extensive or repeated requests by setting higher service charges.

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Walter M. Luers, Esq., is a partner of Cohn Lifland Pearlman Herrmann & Knopf LLP. He practices in the areas of complex employment litigation, commercial litigation, and access to public records.

Christina N. Stripp, Esq., is an associate of Cohn Lifland Pearlman Herrmann & Knopf LLP. She practices in the areas of commercial litigation, construction litigation, appellate litigation, and access to public records.