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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.

Firm Highlights

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

Thought Leadership

U.S. Supreme Court Decides Key Issue Regarding Interstate Freight Broker Liability

Freight brokers are intermediaries.  They connect shippers of goods with trucking companies that transport those goods.  Freight brokers match a load of freight with a trucking company and oversee the logistics of the transportation. For a number of years there has been a division among the Federal Circuits regarding the potential liability of freight brokers when the trucking companies that they retain for interstate loads are involved in accidents.  At the center of this division was the Federal Aviation Administration Authorization Act of 1994 (FAAAA).  Some Federal Circuit Courts have held that state law negligent hiring claims against freight brokers were preempted by the FAAAA .  Other Federal Circuits Courts have held that even if preemption applied, the “safety exception” in the FAAAA saved state law negligent hiring claims from federal preemption.  On May 14, 2026, the U.S. Supreme Court addressed the conflict in Montgomery v. Caribe Transport II, LLC, et al, No24-1238. In that case freight broker C.H. Robinson selected Caribe Transport to haul an interstate load. The commercial truck driver employed by Caribe Transport allegedly caused an accident and the plaintiff, Montgomery, was seriously injured. Montgomery brought an action against the driver, Caribe Transport and C.H. Robinson. The allegation against C.H. Robinson was that it negligently retained Caribe Transport when it knew, or should have known, that it was an unsafe company. The Seventh Circuit Court of Appeals held that Montgomery’s claims against C.H. Robinson were preempted by the FAAAA. The plaintiff appealed to the U.S. Supreme Court.  The U.S. Supreme Court’s decision focused primarily on the safety exception in the FAAAA.  That provision provides that the FAAAA preemption “…shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” C.H. Robinson argued, as freight brokers historically have, that their function was not “with respect to motor vehicles” because they do not own trucks or employ drivers. They are merely intermediaries, connecting entities who need freight moved with entities who can do that job. Therefore, C.H. Robinson argued that preemption applied, not the safety exception. The U.S. Supreme Court did not accept that argument. The Court focused on the meaning of the phrase “with respect to” in the safety exception. The Court held that it means “referring to”, “concerning” or “regarding”. Therefore, writing for a unanimous Court, Justice Barrett concluded that “[r]equiring C.H. Robinson to exercise ordinary care in selecting a carrier therefore “concerns” motor vehicles—most obviously, the trucks that will transport the goods. So, Montgomery’s negligent-hiring claim falls within the FAAAA’s safety exception, which saves it from preemption.” Justice Kavanaugh, in his concurring opinion, noted the effect this ruling may have on freight brokers and their insurers throughout the country: Importantly, the Court's decision today should not be read to mean that brokers will routinely be subject to state tort liability in the wake of truck accidents. As even plaintiff's counsel stressed, brokers should be able to successfully defend against state tort suits if the brokers have acted reasonably and arranged transportation with reputable trucking companies. Tr. of Oral Arg. 27-29. In plaintiff's counsel's words, the brokers "just have to hire carriers that actually have a reasonable policy," and "the broker is not going to have a problem if it's asking the hard questions of the carrier." Id., at 42, 45. In addition, the proximate-cause requirement in typical state tort law should help protect brokers from excessive liability. Id., at 25. That said, the brokers rightly caution against naivete. In the real world, as the brokers forcefully respond, state tort law can be unpredictable, and the costs to brokers of litigation and insurance may be significant even when brokers prevail in lawsuits. Moreover, the costs of litigation and insurance, as well as the costs of brokers' conducting more substantial inquiries into trucking companies, will cascade through the economy and be paid in part by American consumers in the form of higher prices. The concerns expressed by the brokers are legitimate and weighty. The key point here is that freight brokers can no longer claim they are protected from negligent retention claims by the FAAAA (in cases involving interstate transportation). The challenge will be to determine what is considered ”reasonable efforts” used by brokers when retaining transportation companies. 

graphic with Maria Granaudo photo text announces she has joined the firm as a shareholder in the Health Care Dept.

News

Maria R. Granaudo Joins Marshall Dennehey’s Wilmington Office As a Shareholder in the Health Care Department

Thought Leadership

PA Middle District Dismisses Claims Against School District and its Superintendent, Principal, Special Education Director, and Classroom Teacher

A five-year-old special education student was enrolled in the Wyoming Valley West School District and attended the State Street Elementary School during the 2024-2025 school year. The student refused to clean up classroom toys at dismissal. When his teacher allegedly grabbed him by the wrist to walk him back to his seat, the student dropped to the floor and began crying. The teacher then allegedly grabbed the student by the ankle and dragged him across the floor. Following an investigation, criminal charges were not advanced by the county DA, and the school permitted the teacher to return to the classroom. The student’s parents sued, lodging thirteen legal counts under both state and federal law, which sought monetary damages from the teacher, the school district, the superintendent, the principal, and the director of special education. The plaintiff’s 42 USC 1983 claims were dismissed as to the school district for failure to allege a policy or custom violation, and the failure to alleged deliberate indifference in the failure-to-train context. As to the superintendent, building principal, and special education director, the Section 1983 claims were also dismissed for failure to allege personal involvement on the part of the individuals. Regarding an equal protection claim asserted against all defendants, the motion to dismiss was also granted for a failure to advance a plausible equal protection claim, holding that “plaintiffs' single-act allegations do not include a factual basis to even infer that the act was motivated by discriminatory animus rather than some other non-discriminatory impulse.” The court further dismissed the plaintiff’s negligence-based claims including negligence against the teacher and district administrators, NIED, and vicarious liability under the Political Subdivision Tort Claims Act (PSTCA). The federal claims under the IDEA, Section 504, and the ADA were also dismissed in various respects. The IDEA claim was dismissed against all defendants with prejudice for failure to exhaust administrative remedies. The Section 504 claims against the individual defendants were also dismissed with prejudice, as districts, not individuals, are the recipients of federal funds under Section 504. However, the Section 504 and ADA claims were dismissed without prejudice as to defendant Wyoming Valley West, and the plaintiff was permitted leave to amend.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Event

29th Annual FDLA Florida Liability Claims Conference

Jim and Erica will team up to present, "Supporting the Next Generation: Connecting with Associates." This panel-style presentation will explore communication best practices from the perspective of a senior shareholder and newer associate. The discussion will focus on the communication styles of different generations and effective strategies to avoid communication breakdowns. Topics to be discussed include the hiring process, perceptions of defense work among newer lawyers, work-life balance issues after hiring, and mentoring.

News

Marshall Dennehey Again Earns Recognition in Distinguished Chambers USA

News

Christina Gonzales To Speak at the Women of Color Roundtable at DRI’s Diversity and Inclusion Seminar

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Thought Leadership

Marijuana Legalization and Workplace Risk: What New Jersey Employers Need to Know

While the legalization of recreational marijuana usage poses a risk of increased work-related accidents for younger workers, employers can work to curb this increase by investing in education, effective drug policies, and employee assistance programs.