COVID-19 Legislation Alters OPRA Deadlines in the Event of State and Local Emergencies

On March 20, 2020, Governor Phil Murphy signed an emergency package of laws as part of an ongoing attempt to deal with the COVID-19 pandemic.  The package included Assembly Bill No. 3849 (“A3849”), which loosened the requirements of the state’s Open Public Records Act, or “OPRA.”

Prior to passage of A3849, OPRA required public agencies to respond to public records requests no later than seven business days from the date of the request.  N.J.S.A. 47:1A-5(i).  Those familiar with the process of requesting and obtaining public records are likely aware the process also allows a government agency to request an extension in the event they are unable to respond within the seven day period.

A3849 amended N.J.S.A. 47:1A-5(i), to include the following additional language:

“During a period declared pursuant to the laws of this State as a state of emergency, public health emergency, or state of local disaster emergency, the deadlines by which to respond to a request for, or grant or deny access to, a government record under paragraph (1) of this subsection or subsection e. of this section shall not apply, provided, however, that 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.”

In short, the new law eliminates OPRA’s statutory deadlines for the duration of a Governor-declared state of emergency, or when a state of local disaster emergency is declared by a county or municipality.  The above changes are not limited to the ongoing pandemic and instead will apply during any state of emergency.  Further, the law has no expiration date.

On March 26, 2020 the Government Records Council (“GRC”) issued special statement 2020-01 regarding the new enacted legislation.  The GRC noted that while the deadlines no longer apply during declared states of emergency, the new amendment does require custodians to make a “reasonable effort” to respond to an OPRA request during the seven day period.  The GRC noted the availability of extensions to those custodians who are unable to fulfill a request.  Disputes related to the reasonableness of any extension will be evaluated on a case by case basis, and historically include recognition of “extenuating circumstances.”  Such circumstances are noted to include:  emergency closure of the public agency or the public agency’s need to reallocate resources to a higher priority due to force majeure.

The GRC guidance memo closed by stressing that custodians for agencies who are operating under normal business hours during an emergency (including those closed to the public or working off-site) remain obligated to respond to requests in due course “to the extent possible.”

For more information regarding the recent change in OPRA law and GRC guidance feel free to contact Malcolm I. McPherson, Esq. of Hoagland Longo Moran Dunst & Doukas, LLP at mmcpherson@hoaglandlongo.com or (609) 561-2426.