January 13, 2019

CSG Law Alert: OPRA and Dangerous Animals

A Department of Environmental Protection proposed regulation in the December 17, 2018 New Jersey Register, 50 N.J.R. 2480(a), will limit the public’s ability to learn the location of birds and animals “potentially capable of inflicting serious or fatal injuries or being a menace to public health…” Pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 et seq. (OPRA), the public may obtain government records unless otherwise exempted.  Other than the owner of a particular property requesting records relating only to that property, this proposal exempts access to records that identify, track, or otherwise determine the location of such animals that include, but are not limited to “bears, nondomestic dogs, nondomestic cats, venomous and constrictor snakes and exotic species.”

The stated purpose for the proposal is to protect these birds and animals from being tracked or located by members of the public, some of whom may “seek out and encounter these species and/or interfere with the Department’s management efforts.  The Department has documented numerous instances where members of the public have placed themselves and others, including Department employees, in danger because of such activities.”

Granting only a landowner the ability to learn of the presence of these animals on the property owned misses one key point.  These animals move from property to property.  For numerous reasons, a property owner is entitled to know whether these animals are in the general vicinity of the owned property to understand the likelihood of encountering them directly or indirectly.  Absent such knowledge, residents of these areas may be at risk of harm from their dangerous animal and bird neighbors.  Instead of limiting records access to a landowner, access should be granted to those persons within an area where there is reasonable probability that they may come in contact with an animal or bird capable of inflicting serious or fatal injuries to a human.

A public hearing concerning this rule proposal is scheduled on Thursday, January 31, 2019 and written comments are due electronically by close of business on February 15, 2019.  For more details, see 50 N.J.R. 2480(a).