Recent Amendments to Daniel’s Law Ease Municipal Concerns Regarding OPRA Compliance
Feb 4, 2022 | Written by: | Share
The tragic murder of Judge Esther Salas’s son, Daniel – killed solely because he was the child of a federal judge – will not soon be forgotten. In response to that horrific and senseless crime, and in the young man’s honor, Governor Murphy on November 20, 2020 signed legislation known as “Daniel’s Law” (P.L. 2020, c. 125). Daniel’s Law aims to protect the privacy of active and retired judicial officers, prosecutors, police officers, and their families (defined as “covered persons”), by prohibiting the public disclosure of their home address and otherwise keeping that information shielded from public view.
Since “Daniel’s Law” (P.L. 2020, c. 125) passed, municipalities have fretted over harmonizing compliance with Daniel’s Law and the Open Public Records Act (OPRA). Municipalities maintain many public documents that contain information subject to redaction under the law, including voter records, land ownership records, tax records, pet licenses, planning and zoning board records, building and sub-code permits and applications, landlord registrations, utility records and bills, and 200-foot property owner lists.
Consequently, implementation challenges soon surfaced. Most notable was the question of how municipalities would know what information to redact and when to do so. To address this issue, the state legislature recently introduced and fast-tracked legislation (A-6171/S-4219) that supplements and amends the original law. Governor Murphy signed this new legislation in January 2022 (P.L.2021, c. 371). The recent amendments place the burden on the “covered person” (i.e., the active, formerly active, or retired judicial or law enforcement officers, and their eligible immediate family) to request the redaction of confidential information from state, county, and municipal records through the newly created “Office of Information Privacy” within the Department of Community Affairs. The new legislation tasks the Office of Information Privacy with establishing a “secure portal” for receiving, reviewing, and approving the requests. In short, these amendments make the implementation of Daniel’s Law more feasible for municipalities and create a centralized system to receive redaction requests, which must be addressed within 30 days of receiving the request.
Notably, Daniel’s Law and its amendments are unclear on how the Office of Information Privacy will disseminate to municipalities the list of “covered persons.” One of the problems with the law’s first iteration was that there was no “master list” of covered persons. Section 1(e)(2) P.L. 2021, c. 371 does empower the Director of the Office of Information Privacy to promulgate rules, policies, and regulations, which will hopefully address these questions.
In the meantime, the NJ Division of Taxation, pursuant to a December 20, 2021 memo, intends to release a list of covered persons who have requested redaction to each County Tax Board once per week, which will be disseminated to local tax assessors. This list could be used to evaluate and redact other municipal public records, provided that the list is kept confidential and only provided to very limited necessary staff within municipal offices.
The recommendations below are intended to help municipalities to comply with OPRA requests for documents that may contain information protected under Daniel’s Law.
- Land Records: these are held by the County Clerk, and therefore, municipalities are not responsible for redacting this information. However, many municipalities do maintain a GIS mapping application on their website. These maps are typically tied to assessment data and should be redacted accordingly. For example, the NJGIS mapping website has redacted all owner information until Daniel's Law can be properly implemented: NJ Geographic Information Network | Parcels.
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Tax Records: the Division of Taxation issued a memo dated December 20, 2021 detailing a process by which it and County Tax Boards will work jointly to implement Daniel’s Law. This approach, as detailed below, eases the burden on municipalities.
The Division of Taxation has directed the County Tax Boards to “take lead on sending the information to Property Administration.” The Division of Taxation recommends that a “covered person” submit a request in writing to the County Tax Board to have their information redacted. The Division of Taxation further recommends that the County Tax Boards email a spreadsheet of persons requesting redaction to each assessor. The Division of Taxation has advised that the ModIV tax program has been modified to hold both the property owner’s name and the redacted name.
Therefore, municipalities receiving a request for redaction under Daniel’s Law should additionally direct people to the County Tax Board. This spreadsheet should be consulted prior to responding to any OPRA requests for documents from the tax assessor’s files. It appears as though the records can be redacted by the tax assessor directly in the MOD IV system.
The spreadsheet provided by the Division of Taxation should be kept confidential. However, with approval from the Division of Taxation, this could possibly be shared with the municipal records custodian and used to redact other documents requested pursuant to OPRA.
- Pet Licenses, Building and Sub-Code Permits and Applications, Landlord Registrations, Utility Records and Bills: the list disseminated by the Division of Taxation can be used to redact the names of “covered persons.” However, municipal tax assessors should seek guidance from the Division of Taxation as to whether the list can be shared with the municipalities' records custodians.
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Land Use Board Records: pursuant to the MLUL, Land Use Board application materials must be available for public inspection at least 10 days prior to the hearing. J.S.A. 40:55D-10. The MLUL does not provide for any redactions to Land Use Board records.
However, we have a few recommendations on how to comply and reconcile the requirements of Daniel’s Law and the MLUL. If a covered person is the owner and resident of a property that is the subject of a land use application, redactions cannot be made during the pendency of the application before the applicable board. Therefore, we recommend that board applications be revised to include a waiver of liability under Daniel’s Law for the disclosure of the application information to members of the public during the pendency of the application. After the application has been approved or denied, any protected information should be redacted going forward.
- 200-Foot Property Owner Lists: information from such lists is typically requested in connection with land use applications, and is usually pulled from tax assessment records. Therefore, such information should be redacted consistent with the December 20, 2021 memo from the Division of Taxation. However, these lists should be checked against the spreadsheets provided by the County Tax Board, and owners’ names should be replaced with a redaction or a phrase such as “Owner of Record.”
- Voter Registration Files: the amendments to Daniel’s Law provide an exception for voter registration data. Copies of unredacted voter registration files will be provided to certain qualified individuals identified in the statute (e.g., the chairperson of a political party’s county or municipal committee, a candidate for distribution to a challenger, or any vendor involved in election administration).
Prior to releasing any information that may be subject to Daniel’s Law, municipal officials should consult with their attorney.
Tara St. Angelo, Esq. concentrates her practice primarily in the areas of municipal and land use law. She was named to the NJ Super Lawyers Rising Stars list for State, Local and Municipal law by Thomson Reuters in 2017, 2018, 2019, 2020, and 2021. Contact Ms. St. Angelo at Gebhardt & Kiefer, PC at 908-735-5161 or via email.
Noel A. Lesica, Esq. focuses her practice on labor and employment and general litigation. She has experience in virtually all aspects of employment law, including investigating and addressing claims involving sexual and other forms of unlawful harassment and discrimination, retaliatory practices, wage and hour violations, pay equity violations, leave entitlements under federal, state and local law, and restrictive covenants. Ms. Lesica has also advised clients on a wide range of compliance issues related to COVID-19.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.