New Jersey

What is the law?

Binding, on-point law (about)

A copyright challenge to the New Jersey Open Public Records Act (OPRA) was brought by a county seeking to seeking to avoid disclosure of commercially valuable topographical maps. [1] Bd. of Chosen Freeholders of Cnty. of Burlington v. Tombs, 215 F. App'x 80 (3d Cir. 2006). The court, however, dismissed the case on other grounds and did not address the substantive copyright issue. A subsequent analysis by the New Jersey Government Records Council, the state advisory body charged with enforcement of the OPRA, determined that copyright law is not a valid ground to justify refusal of a public records request, but did not address the possibility of subsequent licensing or restriction on use of the disclosed records. New Jersey Government Records Council, Complaint No. 2007-3. Following these decisions, the county continues to provide GIS data under licensing terms, and does not indicate in their policies that they restrict the subsequent use of the data. See Burlington County, Access to Data and Maps.

Advisory sources (about)

The New Jersey Government Records Council says that, "copyright law does not prohibit access to records that are otherwise accessible under OPRA." New Jersey Government Records Council, A Citizen's Guide to the Open Public Records Act 32.

Public records law (about)

The current New Jersey Open Public Records Law is found at N.J. Stat. Ann. § 47:1A-1 et seq. A common law right of access to public records has existed in New Jersey since at least 1910. Fagan v. State Bd. of Assessors, 80 N.J.L. 516, 77 A. 1023 (Sup. Ct. 1910); see Harold L. Cross, The People's Right to Know: Legal Access to Public Records and Proceedings, (1953), at 7-8.

Does the public records law restrict the use of disclosed records?

Restrictions on the use of public records depend on the source of the public records request. Under the Open Public Records Law, the purpose of the request and subsequent use of the records is irrelevant, however such factors may be considered if a document is requested under the common law right of access. See generally, Reporters Committee for Freedom of the Press, Open Government Guide: Access to Public Records and Meetings in New Jersey. Subsequent commercial use of records is irrelevant under the OPRA. Burnett v. County of Bergen, 198 N.J. 408, 968 A.2d 1151 (2009).

Specifics and examples (about)

Status	Applies to...	Based on?
Copyright may be asserted by state	Contents of New Jersey state websites	http://www.nj.gov/nj/legal.html ("The State of New Jersey has made the content of these pages available to the public and anyone may view, copy or distribute State information found here without obligation to the State, unless otherwise stated on particular material or information to which a restriction on free use may apply. However, the State makes no warranty that materials contained herein are free of Copyright or Trademark claims or other restrictions or limitations on free use or display. Making a copy of such material may be subject to the copyright of trademark laws.")
Public domain asserted by state	New Jersey School Climate Survey materials	http://www.state.nj.us/education/students/safety/behavior/njscs/

Additional things to consider (about)

It is unclear if New Jersey records requests are limited to state citizens. N.J. Stat. Ann. § 47:1A-1 states that "government records shall be readily accessible for inspection, copying, or examination by the citizens of this State," however elsewhere the OPRA requires records to be made available to "any person." N.J. Stat. Ann. § 47:1A-5. Under New Jersey common law, citizenship is not required for access to records, however, the requestor must demonstrate "interest" in the records. S. New Jersey Newspapers, Inc. v. Twp. of Mt. Laurel, 141 N.J. 56, 71, 660 A.2d 1173, 1181 (1995).

N.J. Stat. Ann. § 47:3-27 gives the New Jersey Bureau of Archives and History in the Department of Education the right to "demand and receive from any person any public record in private possession belonging to this State." This law is also featured prominently by the state archives, which solicits the return of missing documents. New Jersey State Archives, Missing or Alienated Records of the State of New Jersey: Public Notice: Document Recovery and Amnesty.

Where else to go

New Jersey Open Public Records Act, available at http://www.state.nj.us/opra/.
New Jersey Government Records Council, available at http://www.state.nj.us/grc/.
Reporters Committee for Freedom of the Press, Open Government Guide: Access to Public Records and Meetings in New Jersey, available at http://www.rcfp.org/rcfp/orders/docs/ogg/NJ.pdf.
New Jersey State Archives, available at http://www.state.nj.us/state/archives/index.html.
New Jersey State Library, available at http://www.njstatelib.org/about/.

Bibliography

Cases

Bd. of Chosen Freeholders of Cnty. of Burlington v. Tombs, 215 F. App'x 80 (3d Cir. 2006).
Fagan v. State Bd. of Assessors, 80 N.J.L. 516, 77 A. 1023 (Sup. Ct. 1910)
S. New Jersey Newspapers, Inc. v. Twp. of Mt. Laurel, 141 N.J. 56, 71, 660 A.2d 1173, 1181 (1995)
Loigman v. Kimmelman, 102 N.J. 98, 505 A.2d 958 (1986)
Home News v. New Jersey Dept. of Health, 144 N.J. 446, 454, 539 A.2d 736 (1996)
Williams v. Board of Education of Atlantic City Public Schools, 329 N.J. Super. 308, 747 A.2d 809 (App. Div. 2000) cert. denied 165 N.J. 488, 478 A.2d 648.
McClain v. College Hospital, 99 N.J. 346, 429 A.2d 991 (1985).
Burnett v. County of Bergen, 198 N.J. 408, 968 A.2d 1151 (2009).

Statutes

N.J. Stat. Ann. § 47:1A-1.
N.J. Stat. Ann. § 47:1A-5.
N.J. Stat. Ann. § 47:3-27.

Administrative Rules

New Jersey Government Records Council, Complaint No. 2007-3, available at http://www.nj.gov/grc/decisions/pdf/2007-03.pdf.

Other

Burlington County, Access to Data and Maps, available at http://www.co.burlington.nj.us/531/Access-to-Data-Maps.
New Jersey Government Records Council, A Citizen's Guide to the Open Public Records Act 32, available at http://www.nj.gov/grc/public/docs/Citizen's%20Guide%20to%20OPRA%20(July%202011).pdf.
Edward A. Pisacreta & Jonathan P. Mollod, Licensing and Commercialization Issues for Geographic Data, 45 Les Nouvelles 1, 5 (2010).
Reporters Committee for Freedom of the Press, Open Government Guide: Access to Public Records and Meetings in New Jersey, available at http://www.rcfp.org/rcfp/orders/docs/ogg/NJ.pdf.
New Jersey School Climate Survey, available at http://www.state.nj.us/education/students/safety/behavior/njscs/.
State of New Jersey, Conditions of Use Notice, available at http://www.nj.gov/nj/legal.html.
New Jersey State Archives, Missing or Alienated Records of the State of New Jersey: Public Notice: Document Recovery and Amnesty, available at http://www.state.nj.us/state/archives/missingdocuments.html.

Footnotes

[1] Most recent litigation touching on the copyright status of state documents has concerned GIS data (see, e.g., the cases in Florida (Microdecisions, Inc. v. Skinner, 889 So. 2d 871 (Fla. Dist. Ct. App. 2004)), California (County of Santa Clara v. Superior Court, 89 Cal. Rptr. 374 (Cal. Ct. App. 2009)), New York (City of New York v. Geodata Plus, LLC, 537 F. Supp. 2d 443 (E.D.N.Y. 2007)), and South Carolina (Seago v. Horry County, 663 S.E.2d 38 (S.C. 2008))). For a general discussion of the copyright status of government GIS data, see Edward A. Pisacreta & Jonathan P. Mollod, Licensing and Commercialization Issues for Geographic Data, 45 Les Nouvelles 1, 5 (2010).