Senator JEFF VAN DREW
District 1 (Atlantic, Cape May and Cumberland)
Senator STEVEN V. OROHO
District 24 (Morris, Sussex and Warren)
Codifies regulation exempting firearms records from State's open public records law; abolishes common law right of access to these records.
CURRENT VERSION OF TEXT
An Act concerning firearms records and amending P.L.1963, c.73, P.L.1995, c.23, and P.L.2001, c.404.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 1 of P.L.1963, c.73 (C.47:1A-1) is amended to read as follows:
1. The Legislature finds and declares it to be the public policy of this State that:
government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest, and any limitations on the right of access accorded by P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented, shall be construed in favor of the public's right of access;
all government records shall be subject to public access unless exempt from such access by: P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented; any other statute; resolution of either or both houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law, federal regulation, or federal order;
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 to safeguard from public access information when disclosure thereof would jeopardize personal or public safety; and [nothing contained in] P.L.1963, c.73 (C.47:1A-1 et seq.), as amended and supplemented, shall not be construed as affecting in any way the common law right of access to any record, including but not limited to criminal investigatory records of a law enforcement agency , unless otherwise expressly provided.
(cf: P.L.2001, c.404, s.1)
2. Section 1 of P.L.1995, c.23 (C.47:1A-1.1) is amended to read as follows:
1. As used in P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented:
"Biotechnology" means any technique that uses living organisms, or parts of living organisms, to make or modify products, to improve plants or animals, or to develop micro-organisms for specific uses; including the industrial use of recombinant DNA, cell fusion, and novel bioprocessing techniques.
"Custodian of a government record" or "custodian" means in the case of a municipality, the municipal clerk and in the case of any other public agency, the officer officially designated by formal action of that agency's director or governing body, as the case may be.
"Government record" or "record" means any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.
A government record shall not include the following information which is deemed to be confidential for the purposes of P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented:
information received by a member of the Legislature from a constituent or information held by a member of the Legislature concerning a constituent, including but not limited to information in written form or contained in any e-mail or computer data base, or in any telephone record whatsoever, unless it is information the constituent is required by law to transmit;
any memorandum, correspondence, notes, report or other communication prepared by, or for, the specific use of a member of the Legislature in the course of the member's official duties, except that this provision shall not apply to an otherwise publicly-accessible report which is required by law to be submitted to the Legislature or its members;
any copy, reproduction or facsimile of any photograph, negative or print, including instant photographs and videotapes of the body, or any portion of the body, of a deceased person, taken by or for the medical examiner at the scene of death or in the course of a post mortem examination or autopsy made by or caused to be made by the medical examiner except:
when used in a criminal action or proceeding in this State which relates to the death of that person,
for the use as a court of this State permits, by order after good cause has been shown and after written notification of the request for the court order has been served at least five days before the order is made upon the county prosecutor for the county in which the post mortem examination or autopsy occurred,
for use in the field of forensic pathology or for use in medical or scientific education or research, or
for use by any law enforcement agency in this State or any other state or federal law enforcement agency;
criminal investigatory records;
victims' records, except that a victim of a crime shall have access to the victim's own records;
personal firearms records, except for use by any person authorized by law to have access to these records or for use by any government agency, including any court or law enforcement agency, for purposes of the administration of justice;
trade secrets and proprietary commercial or financial information obtained from any source. For the purposes of this paragraph, trade secrets shall include data processing software obtained by a public body under a licensing agreement which prohibits its disclosure;
any record within the attorney-client privilege. This paragraph shall not be construed as exempting from access attorney or consultant bills or invoices except that such bills or invoices may be redacted to remove any information protected by the attorney-client privilege;
administrative or technical information regarding computer hardware, software and networks which, if disclosed, would jeopardize computer security;
emergency or security information or procedures for any buildings or facility which, if disclosed, would jeopardize security of the building or facility or persons therein;
security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software;
information which, if disclosed, would give an advantage to competitors or bidders;
information generated by or on behalf of public employers or public employees in connection with any sexual harassment complaint filed with a public employer or with any grievance filed by or against an individual or in connection with collective negotiations, including documents and statements of strategy or negotiating position;
information which is a communication between a public agency and its insurance carrier, administrative service organization or risk management office;
information which is to be kept confidential pursuant to court order;
any copy of form DD-214, or that form, issued by the United States Government, or any other certificate of honorable discharge, or copy thereof, from active service or the reserves of a branch of the Armed Forces of the United States, or from service in the organized militia of the State, that has been filed by an individual with a public agency, except that a veteran or the veteran's spouse or surviving spouse shall have access to the veteran's own records; and
that portion of any document which discloses the social security number, credit card number, unlisted telephone number or driver license number of any person; except for use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf thereof, or any private person or entity seeking to enforce payment of court-ordered child support; except with respect to the disclosure of driver information by the New Jersey Motor Vehicle Commission as permitted by section 2 of P.L.1997, c.188 (C.39:2-3.4); and except that a social security number contained in a record required by law to be made, maintained or kept on file by a public agency shall be disclosed when access to the document or disclosure of that information is not otherwise prohibited by State or federal law, regulation or order or by State statute, resolution of either or both houses of the Legislature, Executive Order of the Governor, rule of court or regulation promulgated under the authority of any statute or executive order of the Governor.
A government record shall not include, with regard to any public institution of higher education, the following information which is deemed to be privileged and confidential:
pedagogical, scholarly and/or academic research records and/or the specific details of any research project conducted under the auspices of a public higher education institution in New Jersey, including, but not limited to research, development information, testing procedures, or information regarding test participants, related to the development or testing of any pharmaceutical or pharmaceutical delivery system, except that a custodian may not deny inspection of a government record or part thereof that gives the name, title, expenditures, source and amounts of funding and date when the final project summary of any research will be available;
test questions, scoring keys and other examination data pertaining to the administration of an examination for employment or academic examination;
records of pursuit of charitable contributions or records containing the identity of a donor of a gift if the donor requires non-disclosure of the donor's identity as a condition of making the gift provided that the donor has not received any benefits of or from the institution of higher education in connection with such gift other than a request for memorialization or dedication;
valuable or rare collections of books and/or documents obtained by gift, grant, bequest or devise conditioned upon limited public access;
information contained on individual admission applications; and
information concerning student records or grievance or disciplinary proceedings against a student to the extent disclosure would reveal the identity of the student.
"Personal firearms record" means any background investigation conducted by the chief of police, the county prosecutor, or the Superintendent of State Police, of any applicant for a permit to purchase a handgun, firearms identification card license, or firearms registration; any application for a permit to purchase a handgun, firearms identification card license, or firearms registration; any document reflecting the issuance or denial of a permit to purchase a handgun, firearms identification card license, or firearms registration; and any permit to purchase a handgun, firearms identification card license, or any firearms license, certification, certificate, form of register, or registration statement.
"Public agency" or "agency" means any of the principal departments in the Executive Branch of State Government, and any division, board, bureau, office, commission or other instrumentality within or created by such department; the Legislature of the State and any office, board, bureau or commission within or created by the Legislative Branch; and any independent State authority, commission, instrumentality or agency. The terms also mean any political subdivision of the State or combination of political subdivisions, and any division, board, bureau, office, commission or other instrumentality within or created by a political subdivision of the State or combination of political subdivisions, and any independent authority, commission, instrumentality or agency created by a political subdivision or combination of political subdivisions.
"Law enforcement agency" means a public agency, or part thereof, determined by the Attorney General to have law enforcement responsibilities.
"Constituent" means any State resident or other person communicating with a member of the Legislature.
"Member of the Legislature" means any person elected or selected to serve in the New Jersey Senate or General Assembly.
"Criminal investigatory record" means a record which is not required by law to be made, maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding.
"Victim's record" means an individually-identifiable file or document held by a victims' rights agency which pertains directly to a victim of a crime except that a victim of a crime shall have access to the victim's own records.
"Victim of a crime" means a person who has suffered personal or psychological injury or death or incurs loss of or injury to personal or real property as a result of a crime, or if such a person is deceased or incapacitated, a member of that person's immediate family.
"Victims' rights agency" means a public agency, or part thereof, the primary responsibility of which is providing services, including but not limited to food, shelter, or clothing, medical, psychiatric, psychological or legal services or referrals, information and referral services, counseling and support services, or financial services to victims of crimes, including victims of sexual assault, domestic violence, violent crime, child endangerment, child abuse or child neglect, and the Victims of Crime Compensation Board, established pursuant to P.L.1971, c.317 (C.52:4B-1 et seq.).
(cf: P.L.2005, c.170, s.1)
3. Section 9 of P.L.2001, c.404 (C.47:1A-8) is amended to read as follows:
9. Nothing contained in P.L.1963, c.73 (C.47:1A-1 et seq.), as amended and supplemented, shall be construed as limiting the common law right of access to a government record, including criminal investigatory records of a law enforcement agency ; provided, however, that any common law right of access to a personal firearms record is abolished.
(cf: P.L.2001, c.404, s.9)
4. This act shall take effect immediately.
This bill would codify the exemption to the State's open public records law for records relating to the acquisition of firearms by individuals established by regulation, pursuant to N.J.A.C.13:54-1.15. The bill would also resolve the ambiguity in case law as to the accessibility of these records under the common law right of access by abolishing any such right. The bill would protect the privacy of individuals with New Jersey firearms permits, licenses, and registrations, and would protect public safety.
Recently, a newspaper in New York published an online map of certain firearms permit holders in that state. The newspaper was able to create the map through public records requests for the names and addresses of these permit holders, which information is public record under New York law. The publication of this information has raised serious privacy and public safety concerns. The map has put all individuals and their homes at risk, allowing them to be targeted for theft or burglaries based on firearms ownership status. The map has also put the safety of law enforcement officers and their families at risk as inmates have used it to learn the home addresses of sheriff's officers and have made threats involving their homes. It has also put victims of domestic violence at risk by providing their assailants with a means of finding them. This bill would help prevent such publication from happening in New Jersey.
Under current law, personal firearms records are exempt from the State's open public records law by the administrative regulation, but they may be accessible under the common law right of access to government records. In Southern New Jersey Newspapers v. Twp. of Mt. Laurel, 141 N.J. 56, 75-76 (1995), the Supreme Court of New Jersey held that these records could potentially be accessible under the common law, but remanded the issue for a more complete review of the competing interests to be balanced in a common law right of access analysis. No subsequent published case law has definitively resolved this issue. This bill would incorporate the specific administrative regulation exemption language into the open public records statute to give greater permanence to the exemption and would abolish any common law right of access to these firearms records to foreclose any potential public access through that doctrine.