Saturday, June 5, 2010

Appellate Division: Rules that were proposed but not enacted do not create OPRA exemptions.

Back in 2002, when OPRA was enacted, Governor McGreevey issued an executive order which, in part, allowed state agencies to deny access to records that were exempted by administrative rules that had been proposed but had not yet been adopted.

In 2008, the Government Records Council (GRC) held that rules that were proposed by state agencies as far back as 2002 but never enacted still constitute a lawful basis for denying OPRA requests. On June 4, 2010, the Appellate Division reversed the GRC's decision.

The court said that it could "perceive no basis for this kind of expansive interpretation" of McGreevey's executive order. Rather, the court ruled that McGreevey's executive order "was only intended to establish a stopgap exemption from disclosure during the interim period between the effective date of OPRA and the adoption by State agencies of proposed rules that would establish such exemptions" permanently.

The Appellate Division delayed implementing its decision under November 5, 2010, apparently to give state agencies an opportunity to enact rules that will restrict public access to their records.

The Appellate Division's decision and the GRC decision that it overturned are on-line here.

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