Dear Mayor:

Municipal officials should take note that here have been a number of very recent developments and modifications of the rules with respect to access to public records.

First of all, the Attorney General has distributed a Memorandum to Police Departments with regard to the Open Public Records Act and Executive Order 21. That Memorandum is dated August 2, 2002, and reads as follows:

On July 5, 2002, Governor James McGreevey signed Executive Order No. 21. Nothing in that Order was intended to restrict immediate release of information to the pubic under Executive Order No. 69 (Whitman), which is now included as part of the new Open Public Records Act. Police departments should continue to release the address of any individual arrested for committing a crime, the address of any victim of a crime, and the location of the occurrence of any crime, unless the police department is authorized to withhold that information pursuant to Executive Order No. 69 (Whitman), as codified in N.J.S.A.
47:1A-3.

In addition, Governor James McGreevey has issued Executive Order No. 26, dated August 13, 2002, which modifies the language of Executive Order 21 on access to public records. The text of Executive Order No. 26 is in the process of being placed on the League's website, http://www.njslom.com for your ease of access.

The thrust of Executive Order No. 26 is that Paragraphs 2 and 3 of Executive Order
No. 21 are hereby rescinded and replaced.

Paragraph 2 dealt with records of the Governor's Office and the new language clarifies the documents, which are to be treated as private and confidential. The language does not apply to municipalities, except to the extent that there continues to be a different treatment of communications provided by an identifiable natural person to the Governor which contains information that the sender is not required by law to transmit and which would constitute a clearly unwarranted invasion of personal privacy if disclosed.

That provision is appropriate, but the exemption should be applicable on a consistent basis to communications submitted to local officials as well.

Paragraph 3 of Executive Order No. 21 originally addressed both the personal information on an individual and the resumes, applications for employment, etc. for those seeking a public position. The new language on the employment information says:

No public agency shall disclose the resumes, applications for employment or other information concerning job applicants while a recruitment search is ongoing. the resumes of successful candidates shall be disclosed once the successful candidate is hired. The resumes of unsuccessful candidates may be disclosed after the search has been concluded and the position has been filled, but only where the unsuccessful candidate has consented to such disclosure.

Executive Order No. 26 further provides that certain records are not to be subject to public access, such as records of complaints and investigations undertaken pursuant to the Model Procedures for Internal Complaints Alleging Discrimination, Harassment or Hostile Environments in accordance with Executive Order No. 106 (Whitman), whether open, closed or inactive.

Additionally, information regarding individuals is exempt from disclosure if it is information on medical, psychiatric or psychological history, diagnosis, treatment or evaluation; information on personal income or tax returns; information describing a natural person's finances, income, assets, liabilities, net worth, bank balances, financial history or activities or creditworthiness except as required by law to be disclosed; test questions, records of another department or agency in the possession of another department or agency which are confidential by regulation; records otherwise confidential which are in the possession of the Office of Information Technology or the Records Storage Center.

Finally, Executive Order No. 26 directs the Privacy Study Commission to promptly study the issue of whether and to what extent the home address and home telephone number of citizens should be made publicly available and to report back within 6 months.

At this point in time there has only been one member of the Privacy Study Commission appointed, the attorney for the New Jersey Press Association. We anticipate that the remaining members will be appointed soon.

The League will continue the efforts to keep you advised as to developments on the Open Public Records Act. See our website www.njslom.com for the latest developments.