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
Paul A. Levinsohn
Chief Counsel to the Governor