OLD Borough On The Record

A discussion of open and efficient government

Common Law and Borough records

By presenting an Open Public Records (OPRA) request to your municipality, most government records will be provided to you.  However, some records are not deemed government records and your request can be denied by the Records Custodian.  But, all is not lost – there’s another legal strategy available to you – Common Law.

There is a Common Law Right of Access to records if the requester’s need for access is greater than the government’s need for secrecy. Common Law refers to law developed through decisions of courts and similar tribunals (called case law), rather than through legislative statutes or executive action, and to corresponding legal systems that rely on precedential case law. 

Source: NJFOG OPRA Handbook

Simply stated, you can present an argument to a court, for a given government document, that the public’s right to know outweighs the government’s need to protect the community by its denial to you.  This is not an easy path.  I would recommend consulting an attorney if this is the course you want to pursue.

Find below a terrific YouTube segment that defines Common Law and discusses it application.  From NJFOG 2012 Workshop: Session 1 (OPRA & OPMA) – Published on Apr 18, 2014.

Here is an excellent article on Common Law


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