Government Records Council announces new OPRA regulation amendments

TRENTON, NJ — The Government Records Council, an affiliate of the New Jersey Department of Community Affairs, announced Nov. 7 that new amendments to its regulations pertaining to the Open Public Records Act were adopted, effective Nov. 7. The new amendments address processes previously not covered by the regulations and also provide consistency with New Jersey court rules.

“As the department that oversees the GRC, the DCA is committed to fostering greater transparency in state government,” said Lt. Gov. Sheila Y. Oliver, who serves as DCA commissioner and a GRC member. “For the past 20 years, the GRC has helped members of the public gain access to government records and assisted records custodians in responding to OPRA requests. The new amendments will further facilitate government transparency for New Jersey citizens, in compliance with the law.”

The amendments address the following areas: statute of limitations, intervenors, anonymity and the denial-of-access complaint process, submission directives and deadlines, interim orders, document exemptions, and clarifications on mediation.

For purposes of OPRA, a statute of limitations denotes the time between an alleged unlawful denial of access and the last day a requestor may file a complaint. Historically, only New Jersey’s courts have enforced a statute of limitations on OPRA complaints, which is 45 calendar days after a denial. The GRC’s amended regulations now implement a statute of limitations of 60 calendar days, or the next business day thereafter. Requestors filing a denial-of-access complaint must now do so within 60 calendar days after: the requestor has received a written denial of access from the custodian or the custodian has failed to respond within seven business days. The statute of limitations does allow a requestor filing beyond the new time frame to submit a motion providing reasons why the GRC should accept the complaint “as within time.” Unless a requestor can successfully argue that their complaint should be accepted “as within time,” the complaint will be rejected for filing. This new rule will only apply to complaints filed on or after Nov. 7.

Since inception of OPRA, the GRC has lacked a process to grant interested third parties, commonly known as intervenors, the ability to participate in an adjudication until the Appellate Division’s decision in Gill v. N.J. Dep’t of Banking & Ins., 404 N.J. Super. 1 (App. Div. 2008). There, the court held that the GRC’s rejection of the party’s request to intervene was arbitrary and unreasonable. Without an established intervenor process, the court set forth factors required to be considered for reviewing requests to intervene. As a result, the new amendments define a process for intervenors. This amended provision provides a step-by-step process on how to submit an application for intervention, the time frame within which a party must file objections, the factors that the GRC needs to consider as part of its determination, and the specific manner in which the GRC must notify the parties of its decision. The amendment further clarifies the denial-of-access complaint process and assists potential intervenors in navigating this process.

Historically, the GRC has allowed requestors, including those using pseudonyms, to file a denial-of-access complaint anonymously. However, in A.A. v. Gramiccioni, 442 N.J. Super. 276 (App. Div. 2015), the Appellate Division was tasked with determining whether an anonymous requestor could proceed anonymously in a court-filed complaint. The court disagreed that such a right was guaranteed by OPRA; however, the court noted that an anonymous requestor may proceed anonymously in certain circumstances. As a result of this decision, the GRC now includes as part of its regulations a prohibition on anonymous complaints with exceptions. These new provisions outline how an anonymous requestor shall file their complaint, the threshold factors considered in whether an anonymous requestor may remain so, and the GRC’s process for notifying an anonymous complainant of how to proceed anonymously. This new process is consistent with A.A. and will not apply to anonymous complaints filed prior to the adoption of the GRC’s amended regulations.

The GRC has reviewed the complaint process and identified what works properly, as well as the parts of the process that lack efficiency or overall clarity. The adoption of amended regulations allows the GRC to include necessary changes to address various issues. A non-exhaustive list is as follows:

• Letters of representation. Previously, the GRC would accept less formal means of notification that the party was represented by an attorney; however, the regulations now require that any representative of a party engaged in a denial-of-access complaint must submit a formal letter of representation. Absent receipt of the formal letter of representation, the GRC will only communicate with the complainant and custodian identified in the complaint.
• Statement of information, or SOI, response time frame. Prior to the new amendments, the GRC required custodians to file an SOI within five business days after a formal request. The newly adopted regulations now provide a custodian with 10 business days to submit the requested SOI.
• Submissions beyond the statement of information. Previously, the GRC would allow parties to submit additional responses for consideration without limitation. The newly adopted regulations now provide a complainant one response to the SOI and a custodian an opportunity to reply to the complainant’s response.
• Filing form requirements. Filings with the GRC must now include the official form. Additionally, the GRC has codified its long-standing policy that submissions in excess of 50 pages are required to be submitted as a physical copy.
• Prevailing party settlements. The newly adopted regulations codify the GRC’s long-standing policy of allowing parties 20 business days to settle the amount of fees due to a prevailing party.
• Ex parte communications. The newly adopted regulations define ex parte communications, which are substantive complaint submissions not shared with all complaint parties, and provide that these communications will not be considered as part of an adjudication.

The GRC’s regulations have been amended to provide clarity to the mediation process. The new changes include: clarifying a mediation communication is not disclosable without consent of all mediation participants; providing a process for “nonparty participants” to participate in mediation; allowing the mediation to refer a complaint back to the GRC for adjudication if a party breaches any portion of the formally signed agreement; and providing that the GRC shall administratively dismiss a complaint once the mediator has received notification that a complaint has been settled.

  NJ Department of Community Affairs, Sheila Oliver