On March 20, 2020, Governor Murphy signed A-3849/S-2302 into law as P.L.2020 c. 10, codified at N.J.S.A. 47:1A-5(i)(2). This enactment amends the Open Public Records Act (“OPRA”) by relaxing OPRA’s strict deadlines during a declared state of emergency.
OPRA normally requires a custodian
of a government record to provide access to, respond to or otherwise process a
record request immediately (N.J.S.A. 47:1A-5(e)), or at least within
seven business days (N.J.S.A. 47:1A-5(i)(1)), depending on the type of
record requested, a custodian’s failure to do so being considered a deemed
denial of a request. Ibid.
Under the new law, codified at N.J.S.A.
47:1A-5(i)(2), these strict deadlines no longer apply during a declared
state of emergency, such as now.
Instead, N.J.S.A. 47:1A-5(i)(2) now provides that during a declared “state of emergency, public health emergency, or state of local disaster emergency . . . the custodian of a government record shall make a reasonable effort, as the circumstances permit, to respond to a request for access to a government record within seven business days or as soon as possible thereafter.”
While OPRA’s strict deadlines may
no longer apply during a declared state of emergency, the response time to a
request must still be reasonable, and should be as close as possible to the
normally applicable seven-day period, if possible, as the circumstances permit.
Despite the inapplicability of
normal OPRA deadlines during an emergency, reasonable efforts should be made to
respond to an OPRA request that can be completed, under the circumstances,
within the normal seven-day period, keeping in mind that staff and departments
will be limited in staff and operability during a state of emergency.
Communication with a requestor is also crucial in order to avoid any
misunderstandings.
We believe the following guidelines are helpful in determining how best to handle an OPRA request during a state of emergency under the new law
If a custodian is able to do so, upon receipt of a new OPRA request, it is recommended that a disclaimer be automatically sent to a requestor advising them of the modified response period, such as, for example: “Given the State of Emergency, a reasonable effort will be made to respond to this request within seven business days or as soon thereafter as the circumstances permit, as provided for under N.J.S.A. 47:1A-5(i)(2)”.
For requests that require documents from one or more persons or departments, or that may be kept off-site, a requestor should be provided with an expected completion date beyond the seven-day period upon receipt of new a request.
As to pending requests that have not been completed at the time an emergency is declared, either because of the nature of the request, or due in part to the emergency circumstances, requestors should be contacted and provided with an updated expected due date if and when conditions require it.
If during the course of processing any request it becomes clear that a request cannot be completed within seven days or as previously estimated, the requestor should be provided with an updated expected completion date within the normal seven-day period, if possible. Such date can be amended by the records custodian as the circumstances may further require.
In determining whether a request will be disruptive, the circumstances and limitations created by the State of Emergency and the reasons therefor, can be considered.
Of course, a custodian remains free
to respond to an OPRA record request, immediately or within the normally
applicable seven-day period if they are able to do so, even during a state of
emergency.
We will keep monitoring any
developments regarding the handling of OPRA record requests during this time. If
you have any questions regarding the new law, the above guidance, or any
specific questions regarding the handling of any OPRA record request, as
always, please let us know.
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