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Guest Blogger: Brittany Turner
Bio: Brittany has worked in and alongside local government for over a decade, including as a Village Clerk, Records Manager, Archivist, Professor, and Journalist. In her current role as JustFOIA Solution Consultant, she provides government agencies in her territory (including New Jersey) with a powerful solution that improves efficiency and transparency, mitigates risk, and builds public trust.
After a controversial passage, New Jersey Governor Phil Murphy recently signed S-2930 into law. The sweeping reforms to the state’s Open Public Records Act (OPRA) were championed by the New Jersey League of Municipalities and took effect on September 3, 2024.
Among its many provisions, the new legislation:
- Allows longer timelines and special fees for the commercial requests that make up such a large percentage of the requests you receive.
- Requires requesters to narrow the scope of “any-and-all” type requests for communications.
- Protects you from litigation when you’ve done your due diligence to answer a request.
Regardless of your stance on the bill, what’s certain is that these changes require you to make significant modifications to your OPRA processes, including:
- Tracking separate timelines for commercial requests.
- Clarifying invoices and fees.
- Meeting new communication requirements.
- Adapting to new exemption and redaction guidelines.
- Creating an audit trail on a request to demonstrate good faith efforts.
Many custodians I speak to in New Jersey currently manage their OPRA requests without dedicated software for public records requests, either manually on spreadsheets or using a case management software solution. While these systems may have worked well in the past, they may or may not be able to accommodate the massive changes required by S-2930.
We’ve designed JustFOIA to be the most configurable records request management software on the market, powerful enough to accommodate the complex processes that your agency may need to set up. Not only that, but you can update your forms, workflows, and communications templates without vendor support if provisions in the law are clarified or modified in the future.
This blog isn’t intended to cover every provision in the new law, but it should give you good insights into process changes you should plan for, challenges you may run into, and how JustFOIA can help you solve them.
1. “Commercial Purposes” Requests
The new law outlines records being requested for commercial purposes, with special fees and timelines associated with this type of request.
- A “commercial purpose” request:
- Uses government records for sales, commercial solicitation, rents/leases, services, or any other activity that may result in a profit.
- Examples include accident and motor vehicle reports and building department records associated with real estate sales.
- Does not include requests by news media, educational institutions, scientific entities, political parties or candidates, organized labor, non-profits, or governmental organizations.
- Requesters using records for commercial purposes must certify this when submitting the request. Requesters who fail to certify are subject to special penalties.
- Handling commercial purpose requests:
- Longer Timelines
- Custodians have an additional 7 days to respond to commercial requests (14 days total). This pushes out the timeline for other elements of the request process, such as extension request deadlines and timeline to provide active and inactive records
- Longer Timelines
- Special fees. (See 5. Fees, Invoicing, and Payment)
- You can charge a fee for expediting commercial requests, reducing the timeline from 14 days to the standard 7 days. This fee is capped at two times the cost of production.
Overcoming Challenges with Commercial Requests
Legacy systems may require time—and resource-intensive reconfiguration to accommodate the new workflows, timelines, and fees for commercial reporting. If tracking requests manually, you’ll probably need two separate spreadsheets.
JustFOIA users can:
- Collect additional optional information regarding commercial requests with Dynamic Fields.
- Modify form fields (add, modify, edit, require, etc.) as needs and requirements change without involving the vendor.
- Manage different types of requests separately if needed, including timelines.
- Modify request timelines and deadlines to align with the specific nature of the request.
- Report on commercial requests independent of other types of requests.
- Generate itemized invoices, including special fees that only apply to this type of request, and collect payments in the Payment Portal.
2. New Reasons to Deny Requests
Under the new law, agencies can deny requests that:
- Provide substantially more information than required.
- Require more than reasonable efforts to clarify.
- Don’t provide all required fields on the form developed by the Government Records Council (see 3. Required Form).
- Are sent to multiple custodians at the same agency for the same (or similar) records when a request is already pending.
- Request communications (mail, email, text messages, correspondence, social media postings, and social media messages) without specifying all of the following:
- A specific job title, position, or accounts to be searched.
- A specific subject matter.
- A reasonable time period.
Overcoming Denials Challenges
While it is helpful to be able to deny requests that are confusing or unduly burdensome, too many denials leads to unhappy requesters and poor transparency. It’s better to collect all the information you need about a request upfront, including a narrow enough scope.
JustFOIA users can:
- Set up Dynamic Fields to require additional information and refine the scope of requests for communications.
- Send templated correspondence to simplify requests for clarification.
- Create an optional appeals process using JustFOIA to attempt to reconcile disputes at the local level before escalation to the Government Records Council or court.
3. Required Form
Agencies will be required to use a new request form that will be developed by the Government Records Council.
It must include:
- Newly defined form fields:
- Name
- Address
- Email Address
- Telephone Number
- Description of Request
- Whether the requested records will be used for a commercial purpose (See 1. Commercial Purpose)
- Whether the requested records are exempt from disclosure due to certain legal proceedings
- Information about the appeals process.
However, requests can be submitted via electronic form, letter, email, or fax, as long as the required information is included.
You are also still required to accept anonymous requests, meaning that the name and contact information fields must be optional.
Overcoming Forms Challenges
JustFOIA users can:
- Modify the form on their own if legally required form fields change again in the future.
- Accept requests that are not submitted via the Public Portal. Requests received via mail, email, and fax can be easily entered into the system, managed using the same workflows, and tracked with the same audit history.
- Accept anonymous requests—users are not required to create an account.
4. Timelines and Communications
The law specifies new timelines for fulfilling or communicating about records requests. Among these requirements are:
- Initial response within 7 business days for standard requests.
- 14 days for commercial purpose requests (unless expedited). (See 1. Commercial Purpose)
- 14 business days for Daniel’s Law redactions.
- 14 business days for Fire Districts with one or fewer full-time employees processing requests.
- Reasonable extensions due to unforeseen circumstances must be submitted to the requester within 7 business days of request receipt.
- If a requester is notified that the records are already available on the website, they have 7 days to request assistance after making a “good faith effort” to locate the records. Custodians then have 7 business days to provide additional “reasonable” assistance.
- If the requester is still unable to locate the record and/or requires a physical copy, custodians may charge up to twice the cost of reproduction. (See 7. Fees, Invoicing, and Payment)
- If a requester sends requests to the wrong agency, they must be notified within 7 days. The agency receiving the request will not be obligated to provide these records. (See 6. Exemptions & Redactions)
- Additional communications include:
- Itemized list and explanation of all fees and charges. (See 7. Fees, Invoicing, and Payment)
- Requesters may be notified of potential disruption to agency operations.
- Notification to the requester if the records were created by a different agency within 7 days.
- Requesters have 14 business days to obtain records after notification of completion. (See 7. Transparency & Access)
- Non-anonymous requesters can initiate appeal proceedings within 45 days of denial date.
- Election records will apply to several types of agencies and officers, including County and Municipal Clerks, Fire District Board Clerks, School District Business Administrators, and School District Board Secretaries.
- These records will have specific redaction requirements beyond those associated with general records series. (See 4. Exemptions & Redactions)
- The timelines associated with these records are generally from elections held within the preceding 90 days as well as those occurring within 16 days of the request submission.
- These requirements will only apply to non-commercial requests.
- Transmission of the records will be with 2 business days after the date of the request, provided the request was submitted between 1 and 15 days before the election date.
- If submitted by noon the day before an election, the requested records must be provided by noon on the day of the election.
- These requests are exempted from fees. (See 5. Fees, Invoicing, and Payment)
Overcoming Timeline Challenges
Keeping track of what’s due when has always been a challenge in records requests—but these additional timelines are a maze to keep track of.
JustFOIA users can:
- Standardize communications templates for various circumstances to save time and ensure all requests are treated the same.
- Reference a detailed audit history log and correspondence archive help protect against future legal action.
- Set up multiple forms to accommodate different timelines and request types.
- Manually edit timelines as needed.
- Pause timelines when waiting for a legal opinion, clarification, or other extenuating circumstance.
5. Routing to the Correct Custodian
The law states that:
- You can deny a request if someone has submitted it to multiple people at the same agency.
- A request is not considered submitted (and the 7-day timeline doesn’t start) until it is actually received by the custodian.
Overcoming Routing Challenges
It’s not always clear who a record’s custodian is, so requesters sometimes email multiple people and hope they find the right one. But without a public records tracking system, you may not have transparency into whether someone else is already working on a request. If the custodian is out on vacation and doesn’t see the email, the request is stalled until they get back. And if someone else at your organization receives the request, they might not know where to forward it. Any of these can cause frustration for the requester, legal risks for your organization, and wasted time for your staff.
JustFOIA users can:
- Gain transparency into what requests have been received and who is working on them.
- Easily reassign or escalate a request if the custodian is unavailable.
- Assign a request to the correct custodian automatically or manually.
- Avoid ambiguity around where requests should be submitted by putting relevant information in the Public Portal.
6. Exemptions & Redactions
Exemptions and redactions now include (among others):
- Autopsy records, except requested by next-of-kin, legal representatives, or attending physicians.
- Security alarm system activity, access reports, and other information that may compromise security and is not associated with a specific event.
- Detailed or itemized cost estimates prior to bid opening.
- Personally identifiable information (PII) (in addition to existing Daniel’s Law exemptions):
- Social Security Number
- Credit/debit card number
- Bank account information
- Month and day of birth
- Personal email addresses
- Personal telephone numbers
- Driver’s license numbers
- Email metadata
- HIPAA data
- PII submitted to agency for the sole purpose of receiving official notifications or emergency assistance
- Indecent images of a person’s intimate parts without written consent of the subject
- Street addresses of primary or secondary homes
- Records created by agencies other than the agency receiving the request.
- For election records in certain circumstances, redactions are limited to:
- Signatures
- Social Security Numbers
- Driver’s license numbers or other ID numbers.
Overcoming Redaction Challenges
The long list of new exemptions and redactions could lead to more time spent on manual redactions, more opportunities to make mistakes, and more opportunities for litigation.
JustFOIA users can:
- Automatically strip metadata when converting records to PDFs.
- Use the AI-Enhanced Redaction tool to:
- Redact manually or automatically based on patterns (e.g., redact all numbers in the format XXX-XX-XXXX to remove Social Security Numbers).
- Redact images.
- Assign a second user to review and approve redactions.
- Review and edit redactions made by others to ensure accuracy prior to finalization and release.
- Give redaction permissions to an unlimited number of users at no additional cost.
7. Fees, Invoicing, & Payments
Regulations around fees, invoicing, and payments include:
- Custodians must provide requesters with an explanation and itemized list for all fees and charges. (See 5. Timelines and Communications)
- Special fees:
- Reformatting: Reflects the actual cost of duplication, including technology and labor costs associated with conversion.
- Commercial Purpose Expediting: Up to twice the cost of duplication.
- Records Already on Website: Up to twice the cost of duplication for a physical copy if requester is unable to locate the records.
Overcoming Fees Challenges
The good news for agencies is that under the new law, fees are assumed to be reasonable, and the burden of proof of objecting to the fees falls on the requester.
But many agencies do not have tools that can automatically generate itemized invoices for records requests, so information must be entered in manually or using a mail merge tool.
JustFOIA users can:
- Generate time and materials estimates.
- Add special service fees.
- Automatically generate an invoice for requesters.
- Enable requesters to review and pay fees online through a secure Payment Portal or manually apply cash, check, or money order payments.
- Set payment thresholds that must be met prior to the release of records.
8. Compliance & Liability
New provisions protect you from frivolous lawsuits or requesters who disrupt your organization’s operations.
- The burden of proof is on the requester to show that the agency acted “in bad faith” to sue for failure to respond appropriately to an OPRA request. In instances where an agency “unreasonably denied access, acted in bad faith, or knowingly and willfully violated” OPRA, a Court or the Government Records Council will award a “reasonable attorney’s fee.”
- Requesters who appeal a denial “may” be entitled to reasonable attorney fees; previously, the law said that they “shall” be entitled.
- Under some circumstances, requesters who intentionally and substantially interrupt government functions may now be issued a protective order or referred to mediation. You may also be given a waiver of the required response time.
- These actions require “clear and convincing evidence” of intention to disrupt, and certain exemptions apply, such as labor unions and collective bargaining agreements.
Overcoming Compliance Challenges
As the agency, if you demonstrate that you made a reasonable attempt to comply with OPRA, you generally have more protections under the new law. But if you’re tracking requests on a spreadsheet or in most legacy systems, you don’t have a definitive log of actions taken on a given request, making it harder to demonstrate good faith.
JustFOIA users can:
- Access a detailed Audit Log of all system and user actions made on a specific request to demonstrate good faith.
- Monitor, track, and run reports on the number of requests by requester, nature of request, etc., in case you need to prove that the requester is intentionally disrupting your agency.
9. Transparency & Access to Records
The new law aims to improve transparency (and reduce the overall number of OPRA requests) by requiring more records to be made available digitally.
- Records that are less than two years old must be made available to the public via the government website to the extent feasible.
- Websites should include a search bar on the homepage.
- Agencies can require requesters to use self-serve access to records that are published to the website. You should assist requesters by providing the URL and website locations of search bars, menu buttons, tabs, links, landing pages, etc. where the records are stored.
- Municipalities with electronic OPRA form(s) through a web-based form, portal, or software should also have capability for electronically delivering records.
- Agencies can use “shared services” agreements to meet this requirement (for example, a city and police department can use the same system for publishing records).
Overcoming Transparency Challenges
Records can be published directly on your agency’s site, or they can be released through your JustFOIA portal.
JustFOIA users can:
- Create a searchable archive of OPRA requests and associated records.
- Proactively publish high-interest public records, such as city council minutes or annual budgets. You can establish public visibility expiration after two years, independent of other retention requirements.
- Release an unlimited number of files with no storage limits.
Funding for Implementing NJ Bill S2930
The State of New Jersey recognizes that the amendment will require significant process changes and that you may need to invest in new technology like JustFOIA to comply.
- The Legislature has previously authorized grant funds available to Counties, Cities, Townships, Boroughs, Special Districts, Public School Districts, and other political subdivisions to increase electronic accessibility of government records covered by OPRA.
- Grants can also be disbursed to support shared services agreements, such as joint use of JustFOIA by a City, Police Department, and Fire Department.
About JustFOIA
JustFOIA’s flexibility and configurability make it an ideal choice for New Jersey agencies facing large process changes. To speak with us about NJ Bill S2930 and how we can help you improve efficiency and transparency, fill out the form below today.