Office Of The Governor
EXECUTIVE ORDER NO. 21
WHEREAS, in January, 2002, the New Jersey
Legislature enacted and Acting Governor DiFrancesco signed into
law Chapter 404, P.L. 2001, commonly known as the Open Public
Records Act; and
WHEREAS, the Open Public Records Act contained
substantial revisions to Chapter 73, P.L. 1963, the New Jersey
Right to Know Law that had governed the public's access to government
records for almost 40 years; and
WHEREAS, the Legislature in enacting the
Open Public Records Act reaffirmed it to be the public policy
of this State that public records shall be readily accessible
for examination by the citizens of this State, with certain
exceptions for the protection of the public interest; and
WHEREAS, the Legislature further found
and declared in the Open Public Records Act that a public agency
has a responsibility and an obligation to safeguard from public
access a citizen's personal information with which it has been
entrusted when disclosure thereof would violate the citizen's
reasonable expectation of privacy; and
WHEREAS, the Open Public Records Act provides
that all government records shall be subject to public access
unless exempt from such access by the provisions of the Act;
any other statute; a resolution of either or both houses of
the Legislature; a regulation promulgated under the authority
of a statute or Executive Order of the Governor; an Executive
Order of the Governor; the Rules of Court; or any federal law,
federal regulation or federal order; and
WHEREAS, the Legislature has found and
declared in Chapter 246, P.L. 2001 that domestic preparedness
is essential to preventing and responding to the threat of terrorist
attack; and
WHEREAS, the World Trade Center and Pentagon
attacks and other significant events, both domestic and foreign,
and the ongoing threat to security of our citizens have emphasized
this State's compelling interest in developing and maintaining
a precisely coordinated counter-terrorism and preparedness effort
to enhance the public's safety; and
WHEREAS, in furtherance of this goal the
Legislature has created the Domestic Security Preparedness Task
Force and Executive Order No. 3 has established the Office of
Counter-Terrorism to coordinate the State's counter-terrorism
and preparedness efforts to provide for the public's safety
and welfare; and
WHEREAS, the right of public access to
government records as provided in the Open Public Records Act
must be balanced against the risk of disclosing information
that would facilitate terrorist activity and balanced against
a citizen's reasonable expectation of privacy; and
WHEREAS, the Open Public Records Act does
not afford county and local governments with any means for exempting
access to their records, even where the public interest or a
citizen's reasonable expectation of privacy would clearly be
harmed by disclosure of those records; and
WHEREAS, the Open Public Records Act takes
effect on July 7, 2002, the 180th day after its enactment; and
WHEREAS, the enactment of the Open Public
Records Act occurred one week before this Administration took
office; and
WHEREAS, it was necessary for all State
agencies to conduct a comprehensive review of all records maintained
by that agency, and a thoughtful analysis of those records to
determine which of those records should be exempted from disclosure
in order to protect the public interest or a citizen's reasonable
expectation of privacy; and
WHEREAS, that review and analysis was
required to be performed during a time of shifting personnel
and priorities and changing the way government does business
with its citizens; and
WHEREAS, that process has been largely
completed and the various agencies have identified those documents
that should be exempted from public disclosure in order to protect
the public interest or a citizen's reasonable expectation of
privacy; and
WHEREAS, the proposed regulations of the
various agencies specifying which records under their jurisdiction
are not to be subject to public examination have been published
in the New Jersey Register on July 1, 2002; and
WHEREAS, due to the provisions of the
Administrative Procedures Act and the implementing regulations
adopted pursuant to that Act, the agencies' proposed rules will
not be finalized until October 1, 2002 at the earliest; and
WHEREAS, it is essential to preserve the
confidentiality of certain records maintained by the Office
of the Governor, in order to protect the public interest;
NOW, THEREFORE, I, JAMES E. MCGREEVEY,
Governor of the State of New Jersey, by virtue of the authority
vested in me by the Constitution and by the Statutes of this
State, do hereby ORDER and DIRECT:
At all levels of government -- State, county,
municipal and school district -- the following records shall
not be deemed to be public records under the provisions of Chapter
404, P.L. 2001, and Chapter 73, P.L. 1963, and thus shall not
be subject to public inspection, copying or examination:
Any government record where the inspection, examination
or copying of that record would substantially interfere with
the State's ability to protect and defend the State and its
citizens against acts of sabotage or terrorism, or which, if
disclosed, would materially increase the risk or consequences
of potential acts of sabotage or terrorism.
The Attorney General is hereby directed to promulgate,
in consultation with the Domestic Security Preparedness Task
Force, a regulation to govern the determination of which government
records shall be deemed to be confidential pursuant to subsection
(a).
Public agencies are hereby directed to handle
all government records requests in a manner consistent with
the standard contained in subsection (a) of this Order, until
the regulation is proposed by the Attorney General pursuant
to subsection (b). Once the rule has been proposed, public agencies
shall respond to records requests in a manner consistent with
this Order and the proposed regulation. When that regulation
is finally adopted, it shall govern all government record requests
filed thereafter.
In addition to those records of the Office of
the Governor that are exempted by the provisions of the Open
Public Records Act, the following records maintained by the
Office of the Governor, or any part thereof, shall not be deemed
to be government records under the provisions of Chapter 404,
P.L. 2001, and Chapter 73, P.L. 1963, and thus shall not be
subject to public inspection, copying or examination:
All records that, prior to the effective date
of Chapter 404, P.L. 2001, have been found by a court to be
confidential, or have been found not to be public records.
All records or portions of records, including
electronic communications, that contain advisory, consultative
or deliberative information or other records protected by a
recognized privilege.
Records containing information provided by a
person outside the Office of Governor who has or would have
had a reasonable expectation of privacy in that information
when it was provided to the Office of Governor.
In order to effectuate the legislative directive
that a public governmental agency has the responsibility and
the obligation to safeguard from public access a citizen's personal
information with which it has been entrusted, an individual's
home address and home telephone number, as well as his or her
social security number, shall not be disclosed by a public agency
at any level of government to anyone other than a person duly
authorized by this State or the United States, except as otherwise
provided by law, when essential to the performance of official
duties, or when authorized by a person in interest. Moreover,
no public agency shall disclose the resumes, applications for
employment or other information concerning job applicants while
a recruitment search is ongoing, and thereafter in the case
of unsuccessful candidates.
In light of the fact that State departments and
agencies have proposed rules exempting certain government records
from public disclosure, and these regulations have been published
for public comment, but cannot be adopted prior to the effective
date of the Open Public Records Act, State agencies are hereby
directed to handle all government records requests in a manner
consistent with the rules as they have been proposed and published,
and the records exempted from disclosure by those proposed rules
are exempt from disclosure by this Order. Once those regulations
have been adopted, they shall govern all government records
requests filed thereafter.
Executive Orders No. 9 (Hughes), 11 (Byrne),
79 (Byrne) and 69 (Whitman) are hereby continued to the extent
that they are not inconsistent with this Executive Order.
This Executive Order shall take effect immediately.
| GIVEN, under my hand and seal this 8th day of July in
the Year of Our Lord, Two Thousand and Two, and of the Independence
of the United States, the Two Hundred and Twenty-Seventh.
James E. McGreevey
Governor
|
Attest:
Paul A. Levinsohn
Chief Counsel to the Governor
