It’s a hit or miss for out of state requesters looking for records in the Garden State.
While most states have clear guidelines over whether out of state requests can be rejected, others aren’t so clear - in New Jersey, the Open Public Records Act and governing entities often have contrasting views.
If you take a look at OPRA law, you won’t find specific language banning out-of-state requesters. The only mention the law makes about who can request is found at the beginning of the law, which references “citizens of this State.”
The ambiguity within the records law isn’t anything new. For years, requesters and governing bodies have been dealing with the interpretation of the law.
In 2003, Serrano v. South Brunswick Township dealt with the disclosure of 911 calls. It was unclear if 911 calls fell under the definition of a records under OPRA law. Ultimately, the judge ruled in favor of the requester and the release of the 911 tapes, but made it clear that “ambiguities in OPRA are to be resolved in favor of public access.”
Serrano v. South Brunswick Township gave requesters the chance to tackle OPRA grey areas and address them in court. But when it comes to out-of-state requesters, the Government Records Council, New Jersey’s facilitator of open government under the Department of Community Affairs, says that anyone can file a request under OPRA.
“OPRA provides that “government records shall be readily accessible for inspection, copying, or examination by the citizens of this State.” The question of whether non-residents of New Jersey have standing to request records under OPRA was unsettled for several years until recently,” said Director of Communications for the New Jersey Department of Community Affairs, Tammori Petty.
According to Petty, the Appellate Division, in the published decision Scheeler v. Atl. Cty. Mun. Joint Ins. Fund, 454 N.J. Super. 621 (App. Div. 2018), held that “the right to request records under OPRA is not limited to ‘citizens’ of New Jersey.”
“In the same paragraph of N.J.S.A. 47:1A-1 that contains the phrase “the citizens of this State,” the Legislature directed that “any limitations on the right of access accorded by [OPRA], shall be construed in favor of the public’s right of access,” wrote Judge Bookbinder in the decision. “Thus, any doubts about the meaning of the phrase should be resolved in favor of public access, and hence in favor of construing the phrase as a generality rather than an intentional limit on standing. Concerns about OPRA’s practical ramifications should be directed to the Legislature.”
Additionally, the Government Records Council, tasked in facilitating open government in the state, acknowledges that anyone can file a request under OPRA. The state Attorney General’s Office also advises that OPRA does not prohibit access to residents of other states.
Despite court decisions siding with out-of-state requesters, some state agencies continue to block access to these types of requesters while others don’t.
“The court supported its conclusion by stating that “any doubts about the meaning of the phrase should be resolved in favor of public access, and hence in favor of construing the phrase as a generality rather than an intentional limit on standing,” added Petty.
If you don’t live in the state and are looking to request records from New Jersey agencies, take comfort in knowing that state government sides with you. Even if you do get rejected, you can file a court action and pay the fee or file a complaint with the GRC. The GRC does note that filing in court may result in your complaint being resolved more quickly than filing with the GRC.
Do you have your own public records issues in your state? Let us know!
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