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SIU Spotlight

Changes to NJ’s Open Public Records Act and Implications for SIU

SIU Spotlight, Issue 2, Vol. 1, March 2025

March 1, 2025

by Matthew J. Burdalski

In June 2024, New Jersey Governor Phil Murphy signed into law Senate Bill 2930, enacting significant amendments to New Jersey’s Open Public Records Act (OPRA). These changes, effective September 3, 2024, were made with the stated intent to modernize public records access, enhance transparency, and protect personal information. As access to public records is often a tool for SIU in investigating insurance claims, it will be important to understand the changes and how they may impact your investigation. 

The New Jersey Open Public Records Act, N.J.S.A. 47:1A-1 et. seq., was passed in 2002. It replaced New Jersey’s former Right to Know Law and also expanded the definition of a public record. The amendments passed late last year enacted changes to everything from the method to obtaining public records to which records can be provided and how. Some of the most relevant and important changes which should be noted by SIU follow.

Attorney Fees
Previously, requestors who were successful in court with respect to denied records requests were entitled to recover attorney’s fees. The new law limits the right to recover fees only upon a showing that the public agency “unreasonably denied access, acted in bad faith, or knowingly and willfully violated” OPRA. Further, if the records are provided within seven days of a lawsuit, attorney’s fees may be awarded only if the agency “knew or should have known” that the denial violated OPRA. 

Protective Orders Against Disruptive Requests
Public agencies can now seek protective orders against individuals or entities whose records requests are intended to “substantially interrupt the performance of government function.” This was previously unavailable to public agencies. This potentially allows courts to issue orders to limit the scope or number of records requested. 

Public Records on Websites
Agencies are now required to make records available on publicly accessible websites “to the extent feasible.” These websites must include a search function, and custodians must assist requestors in locating records online. This has the benefit of potentially streamlining the process of accessing public records, assuming the records are properly and fully placed online. Further, agencies may now be in compliance of specific records requests by directing the requestor to the online source provided they offer assistance in locating the records. 

Model Request Form
There will now be a model request form that must be utilized by each public agency and used when requesting public records. The new model request form will include additional questions regarding commercial purpose, whether the records are being sought in connection with litigation, and the addition of new exemptions in the Exemptions Checklist section. 

Definition of “Commercial Purpose”
The amendments introduce a new category of requestor—those seeking records for a “commercial purpose.” In addition to commercial entities, this category covers individuals who intend to use the records for the sale, solicitation, rent or lease or a service, or any use by which the user expects to profit either through commission, salary, or fee. Importantly for SIU, those requestors must certify that the records are for a commercial purpose and must provide the intended use of the records. The failure to do so can result in fines. Exemptions apply to journalists, educational institutions, and certain non-profits. The commercial purpose definition is not currently well defined and will likely be the subject of future litigation for clarification. 

Limitations on Use During Legal Proceedings
The amendments to the OPRA law restricts parties to a legal proceeding from requesting records that are the subject of a court order, including pending discovery requests. Requestors must now certify whether their request is connected to a legal proceeding. In short, once litigation has been commenced, requestors will be foreclosed from seeking public records through the OPRA process. Notably, legal proceeding is not specifically defined in the statute, and this provision will apply regardless of whether the agency is a party to the proceeding or not. This is especially important for SIU. Requests for needed records or information important to your investigation must be made as early as possible and prior to any litigation being filed. 

Expanded Definition of Personal Identifying Information
This definition now includes birth dates, personal email addresses, debit card and bank account information, home addresses, personal telephone numbers, personal information of juveniles under 18 (excepting MVC and elections information), HIPPA data, and indecent graphic images, all with the stated intent of enhancing the protection of personal data. 

Responses and Response Time
Agencies must respond to proper requests, in writing, “as soon as possible but not later than seven (7) days after receipt of the request.” The response must address each item requested by either: granting access; denying access; seeking clarification of the request; or requesting an extension of time.

Other Relevant Changes

  • Identical Request: Agencies are no longer required to respond to identical requests for the same information from the same requestor if no information has changed.
  • Appeal Timeframe: Requestors must appeal the denial of their request within 45 days.
  • Records Kept by Others: Agencies are not obligated to respond to requests for records kept by separate public agencies. 
  • Vague Requests: Agencies are not required to respond to a request if it does not identify with specificity the information/documentation sought. 
  • Security Footage: Footage of public buildings is exempt unless the request identifies a specific incident that occurred, or a specified date and limited time period at a particular building.

These amendments were enacted with the stated purpose of balancing the public’s right to access information with the need to protect personal privacy and prevent the misuse and abuse of the records request process. However, from a SIU perspective, the changes may have the effect of limiting access and transparency on the part of the agencies. 

It is crucial for the SIU community to familiarize itself with the new provisions to ensure compliance and maintain the ability to access public records necessary for effective and efficient claims investigations and determinations.

SIU should take care to familiarize itself with the OPRA process and the new potential limitations and roadblocks to accessing public records. Additional care should be taken to ensure compliance with the updated processes and regulations when making records requests as well as the remedies available when encountered with failures to full comply or respond. 

*Matthew is a shareholder in our Mount Laurel, NJ office and a member of the Insurance Fraud/SIU Practice Group. (856) 414-6035 | MJBurdalski@mdwcg.com 


 

SIU Spotlight, Issue 2, Vol. 1, March 2025 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

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On July 21, 2026, the Supreme Court of Pennsylvania issued an opinion emphasizing the limited circumstances in which courts may invoke public policy to bar insurance coverage, holding in Samsung Fire & Marine Insurance Co., Ltd. (U.S. Branch) v. RI Settlement Trust that Pennsylvania public policy does not preclude coverage for claims alleging that insureds enabled or profited from human sex trafficking. The decision rejects a line of federal district court decisions predicting otherwise and reinforces that Pennsylvania courts will invoke the public policy doctrine only in the clearest of circumstances. RI Settlement is particularly significant because it arose on certified questions from the United States Court of Appeals for the Third Circuit, giving the Supreme Court the opportunity to resolve an issue on which federal courts had predicted Pennsylvania law differently. RI Settlement arose out of four separate civil complaints in which the underlying plaintiffs alleged that, as minors, they were the victims of human sex trafficking at various hotels in Philadelphia. The plaintiffs claimed that the hotel owners were negligent in failing to stop the sex trafficking from happening at their hotels. After the filing of the lawsuits, the hotel owners sought coverage under their Commercial General Liability policies. The insurers initially defended the hotels under Reservation of Rights letters, though the carriers later filed Declaratory Judgment actions seeking declarations that they did not owe a duty to defend or indemnify. In short, the insurers argued in the alternative that they did not owe any obligation to provide coverage based upon Pennsylvania public policy (because the claims violated the Human Trafficking Law – 18 Pa.C.S. § 3011) and the terms and conditions of the policy. On motions for judgment on the pleadings, the District Court found for the insurers on the basis of public policy: There is no duty to defend or indemnify against actions arising out of an insured's criminal conduct related to the sex trafficking of minors. The Court appreciates that it may make public policy the basis of a judicial decision only in “the clearest of cases.” See Minnesota Fire & Cas. Co. v. Greenfield, 589 A.2d 854, 868 (Pa. 2004) (quoting Hall v. Amica Mut. Ins. Co., 648 A.2d 755, 760 (Pa. 1994)). Yet, the Court strains to imagine a clearer case than the one presented here in which the facts alleged indicate that Policyholders engaged in criminal conduct in violation of Pennsylvania's Human Trafficking Law. The hotel owners appealed the matter to the Third Circuit, which petitioned the Supreme Court of Pennsylvania to grant review of two certified questions of law: (1) whether Pennsylvania law had an “overriding public policy” against sex trafficking, such that an insurer’s duty to defend and/or indemnify is abrogated when an insured is alleged to have enabled or profited from such trafficking; and (2) if yes, is that duty abrogated whenever the insured’s alleged conduct would constitute a violation of the Pennsylvania Human Trafficking statute. Importantly, the certified questions did not ask the Supreme Court to determine whether the policies afforded coverage under their terms. Rather, the court was asked only whether Pennsylvania public policy independently barred coverage. As a result, the court assumed for purposes of answering the certified questions that the insurers otherwise owed a duty to defend and addressed only the public policy issue, leaving all policy-based coverage defenses for further proceedings. Because the court concluded that the answer to the first certified question was “no”, it did not reach the second issue. In reaching its determination that Pennsylvania public policy does not prohibit insurance coverage for sex trafficking claims, the court limited the impact of its decision in Minnesota Fire & Cas. Co. v. Greenfield, 855 A. 2d 854, 855 (Pa. 2004), which the RI Settlement opinion emphasized as having been an “Opinion Announcing Judgment of the Court” – or a plurality opinion. In Greenfield, the insured homeowner was sued by the estate of his houseguest who overdosed from heroin that he sold to her. 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It is sufficient for the work of the courts to know that the General Assembly has identified conduct it deems harmful and dangerous to the maintenance of an orderly society and criminalized it.” While the court declined to declare that Pennsylvania public policy prohibits coverage for sex trafficking claims, the opinion in RI Settlement expressly states that insurers are free to include appropriate exclusionary language for such causes of actions in their policies if they desire to do so. It will certainly be interesting to see whether the insurance industry accepts the court’s invitation, or perhaps whether the Pennsylvania legislature steps in to clarify that sex trafficking claims are indeed of the type or magnitude that they should not be covered by insurance. In any event, we will, of course, continue to monitor this and other insurance coverage issues that arise before courts in Pennsylvania, New Jersey and throughout our firm’s geographic footprint and around the country.

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