OPRA vs. FOIA is like Godzilla vs. a Girl Scout Troop

When looking to obtain records, many people assume that all records access laws are the same.  NOT TRUE!  The laws vary state-to-state and many people that have consulted me from outside New Jersey are shocked to learn how expansive New Jersey’s Open Public Records Act is interpreted.  Even just across the river in Pennsylvania, there are over 100 exceptions to disclosure.

Recently a case new came out that demonstrates just how effective OPRA is as method to access records when compared to the federal Freedom of Information Act (FOIA).  With OPRA, once a record comes into the hands of a government official, it is a “government record” subject to disclosure.  As Judicial Watch v. FHFA  demonstrates, a record in possession and control of the federal government is not a “government record” under FOIA (and thus is not subject to disclosure) if no one has read it. (Begging the question of why are we creating records no one reads, but that is beyond the scope here.)  Thankfully the New Jersey legislature did not impart such a complicated test to determine what records are subject to release.  Under OPRA, if the government has a record, it is subject to disclosure unless it falls into the few exceptions provided in the law.   All that needs to be demonstrated is the government “possesses” the record.  In contrast, under FOIA a record is not subject to disclosure unless (1) the record was “intended” to be a public record (2) it has “control” over the record to dispose of or use at it sees fit and (3) it was relied upon to set policy or assist in a decision.

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