Supreme Court to Review Daniel’s Law Case

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The Supreme Court recently granted review of a case presenting a claim by a reporter that Daniel’s Law unconstitutionally prohibited him from publishing news stories that included the home address of an official covered by this law. Kratovil v. City of New Brunswick.

I’m surprised the Supreme Court decided to review this case, which does not present broad issues of the overall constitutionality of the law’s prohibition against disclosing the home addresses of judges, prosecutors, and law enforcement personnel. Instead, the appeal involves the narrow question of the validity of applying Daniel’s Law to this reporter, under the specific factual circumstances of this case. The Court itself described the question before it us whether Daniel’s Law is “unconstitutional as applied to plaintiff [the reporter]?”

The Appellate Division opinion highlights the limited nature of this matter. In affirming the trial court, it stated:

The trial court, however, did not tell plaintiff what he could or could not
publish….The trial court stated that the publication of the town where Caputo [New Brunswick Police Director] lived was a matter of public concern, but Caputo’s specific street address was
not. The trial court did not, however, enjoin or restrain plaintiff from publishing
a story about where Caputo lived while he was a City official.

In other words, this case does not raise a challenge to the core requirement of Daniel’s Law, which prohibits disclosure of certain officials’ home addresses. And this means that the Court’s opinion in this matter is unlikely to affect OPRA, which now mandates redaction of home addresses in responding to requests.

Don’t Overlook These Beneficial Changes Made In The OPRA Reform Law

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The provisions of the recent OPRA amendments that have gotten the most attention are new sections dealing with attorney fee awards, commercial requests, and authorization of suits against requestors who seek to interfere with government operations. These are important, but today I want to focus on other significant revisions that have been somewhat under the radar.

Over the years, OPRA’s unclear language, or in some cases, the absence of language, caused several problems in implementing the statute. The new law addresses many of these issues. Here are a few examples of these beneficial changes:

-Since OPRA’s original enactment, it’s been unclear whether the statute’s privacy provision required custodians to redact individuals’ personal information, particularly home addresses and personal email addresses, from government records. This ambiguity led to much litigation over the years, and as I’ve often noted, the case law has not resulted in much clarity. The new law resolves this problem by expressly stating when address information must be kept confidential. And the statute specifically overturns the Supreme Court’s untenable interpretation of the privacy section in the Bozzi case, where the Court determined pet owners have no expectation of privacy when they apply for a pet license, and therefore their home addresses must be disclosed.

-Custodians constantly struggle with responding to overly broad requests that don’t identify specific records, and instead require custodians to conduct research to satisfy the request. Although the courts have consistently stated that such a request is invalid, requestors keep making this type of request. The amended statute now expressly says that requests involving research are invalid, and more specifically defines what’s needed for a request to be valid.

-One of the most problematic aspects of the courts’ interpretation of OPRA has been that a person who is litigating against an agency, with the opportunity to obtain agency records through discovery, is allowed to separately submit an OPRA request with that agency, seeking the same records. The new law expressly precludes litigants from doing this.

-Unlike all other state agencies (and the courts), the GRC does not have a deadline for a requestor to file a complaint with the GRC, giving a requestor an unlimited amount of time to challenge a custodian’s OPRA request. The statute resolves this absurd situation, imposing a 45-day period for filing GRC complaints.

The Amended OPRA Law Means Some New Work for Custodians

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A primary purpose of the recently-enacted amendments to OPRA is to make OPRA compliance by public bodies more efficient and less costly, thereby saving taxpayers’ money. Various provisions in the new law are aimed at this objective. For example, there are some new exemptions from what is a government record; there’s language that enables custodians to refer requestors to a website for the documents sought; and there are sections permitting the denial of duplicative requests as well as requests for records that are also the subject of discovery in litigation.

But the law also potentially creates a lot of new work for custodians. I’ll delve into these in detail in subsequent posts, but here are a few examples:

-Custodians must ensure they’ve redacted from records “personal identifying information,” which covers several additional types of information, such as credit and debit card numbers, bank account information, month and day of birth, telephone numbers, the street address of a person’s home, and a personal email address.

-Metadata is exempt, except for the “portion that identifies authorship, identity of editor, and time of change,” so custodians will have to take the time to go through metadata to identify this public information.

-OPRA now says that government records “shall be made available to the public on a publicly available website to the extent feasible,” and the custodian must provide the requestor with directions to assist in finding these records on the website.

-There are new requirements for fulfilling requests for a “commercial purpose.” Such requests must be answered within 14 business days, but if a commercial requestor would like to receive the record within 7 business days, the custodian must provide the record, and may charge a special service fee for it.

In addition to creating new work, I anticipate that these and other new provisions in the statute will generate legal disputes as well. I’ll discuss potential legal issues posed by the legislation in future posts.

Substantial Revisions to OPRA Enacted

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As readers of this blog know, on June 5th the Governor signed into law a bill that, for the first time since OPRA’s inception, significantly revises the law. Over the next several weeks, I’ll publish posts analyzing each of the various new provisions in the statute. Today, I want to make a few general comments about this comprehensive revision of OPRA.

Requestors, the media, and other organizations that oppose the bill have levelled the charge that enacting the bill has “gutted” government transparency under OPRA. I disagree. OPRA continues to provide public access to most records made, maintained or received by the government. The statute’s key requirements governing requests for government records, and responding to requests, have not changed.

The claim that the new legislation undermines public access is based primarily on the fact that attorney fees will now not be automatically awarded to a requestor who succeeds in OPRA litigation. This argument rests on two premises: without mandatory fee awards, attorneys will not take on cases for OPRA requestors; and without the prospect of such awards, public bodies will have less motivation to comply with OPRA.

But OPRA, as revised, still provides for fee-shifting. It states that a court or the GRC “may” award attorney fees to a prevailing requestor; moreover, if the agency unreasonably denied access, or otherwise acted in bad faith, an attorney fee award is mandatory. So there is still a substantial threat that a public agency will have to pay the requestor’s attorney fees when there is litigation.

It appears, as indicated in the Governor’s bill signing statement, that OPRA now follows the model of the federal FOIA, which gives a court discretion to award fees to a prevailing requestor, and requires consideration of the reasonableness of the government’s denial of access in making this determination. I’m not aware of FOIA requestors having problems retaining attorneys for litigation.

The other reason given for claiming that OPRA will no longer be effective focuses on the new provision that allows public entities to sue for a protective order where the requestor sought records “with the intent to substantially interrupt the performance of government function.” The argument is that this threat of being sued will deter people from making requests.

This logic doesn’t hold up. The section does not apply to the typical requestor who is legitimately seeking records, and it’s appropriate for the Legislature to provide a means to deal with someone who uses OPRA to interfere with government.

In addition, I doubt there will be much of a deterrent effect because I think this type of protective order suit will rarely be filed. First, such a complaint may be filed only after the public body has made a “good faith effort to reach an informal resolution of the issues relating to the records requests.” And if this step doesn’t work out, there is an exceptionally high bar to filing a complaint against the requestor: it’s often very difficult to prove in court what the requestor’s intent was, and this is heightened even more by the fact that the statute says this intent must be proven by clear and convincing evidence, an extremely strict burden of proof.

In short, OPRA has not been severely weakened. I think requestors will continue to use OPRA as extensively as they have over the past 22 years of the statute’s existence.

The present situation reminds me of the state of affairs when OPRA was originally enacted, and I was overseeing OPRA legal issues for the Attorney General’s Office. Over the first several years of the statute’s existence, we fielded countless questions, and handled many litigation matters, concerning how to interpret OPRA’s provisions. I expect public bodies throughout the State will similarly have numerous questions, and face a lot of litigation, over the meaning of the new language of OPRA.

Precedential Appellate Division Opinion Confirms: Emails about Government Business are Subject to OPRA, Despite Being On A Personal Account

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Since OPRA’s enactment, it’s been understood that communications concerning government business are government records under OPRA, even though they were sent from, or to, the personal devices of government officials. This principle rests on the common sense basis that OPRA would have little meaning if public bodies could avoid its requirements by communicating through personal emails and texts, rather than governmental accounts.

But although the GRC has expressly adopted this principle (Meyers v. Fairlawn) and the Appellate Division has implicitly applied it, in a discovery matter involving public employees, no precedential court opinion had directly addressed this. The Appellate Division did so for the first time, in a recent published opinion, Assn for Govt Ethics etc. v. Boro of Mantoloking. In this case, the court expressly held (citing the above GRC ruling) that an email concerning government business, despite being sent to a municipal prosecutor’s personal account, was covered by OPRA.

The rest of the court’s opinion dealt with several other OPRA issues, but its holdings on these questions are of limited import because of the specific facts of the case, which are unlikely to come up again in future cases. Both the majority and dissenting opinions characterized this matter as presenting “unique” circumstances. I would go further and say the facts of this case are extremely odd.

In preparing for a prosecution, a municipal prosecutor sought counsel from another attorney about how to handle an issue in the case. The attorney sent the advice in an email to the prosecutor’s personal account. The prosecutor later read this email aloud, in court, and gave a printed copy of the email to the defense, but redacted the sender’s name and email address. The OPRA request sought the redacted identity of the attorney who sent the email.

The Appellate Division upheld the confidentiality of the requested information, for a variety of reasons. It analogized the situation to the confidentiality accorded to advisory, consultative and deliberative material; additionally determined that the attorney had a reasonable expectation of privacy in not having their identity disclosed; concluded that the common law did not warrant disclosure; and said that the information was also exempt under the privilege for an attorney’s work product.

In my view, this last point was the key issue in this matter. It’s clear that the email was subject to the work product privilege, as part of the prosecutor’s preparation for litigation. The dispositive question is whether the prosecutor waived this privilege by disclosing the email’s contents during the court proceeding. The majority opinion concluded the privilege had not been waived as to the identity of the sender of the email, while the dissent determined that the prosecutor did waive the privilege by her actions in court.

I suspect that when the Supreme Court decides this case–which is highly likely, since an appellate opinion with a dissent is appealable to the Supreme Court as of right–the Court will focus primarily on the work product privilege waiver issue. Hopefully, the Supreme Court’s opinion will also provide clear guidance concerning the application of OPRA to governmental communications sent to personal devices.

A Significant Court Ruling: A Prolific OPRA Requestor is Not Allowed to Make OPRA Requests

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Over the past several years, an organization named the African American Data and Research Institute (AADARI) has been a frequent OPRA requestor and litigant. I don’t know how many requests AARDI has made, but it often files challenges to OPRA denials in the GRC and the courts. About half of the cases decided by the GRC in recent have listed as the complainant, “Rotimi Owoh, Esq. (o/b/o African American Data & Research Institute).” And the AADARI, always represented by Mr. Owoh, has litigated a number of Appellate Division and Supreme Court OPRA cases.

However, the Appellate Division recently held that the AADARI does not have the legal capacity to make OPRA requests or to authorize an attorney to act on its behalf, either to make OPRA requests or to file litigation. AADARI v. Hitchner, et al.

This case involved various OPRA and common law requests made by Attorney Owoh on behalf of AADARI. However, the record before the Appellate Division showed that AADARI is a corporation whose sole member is Owoh’s son, O.S., who suffers from a mental illness and is mentally incompetent. The court concluded the corporation did not have the legal ability to take any of the actions involved in the OPRA matters. The corporation can only take actions through its members, but AADARI’s only member, O.S., is not able to do so because of mental incompetence; according to the court, he “does not possess the capacity to retain Owoh, request the records, or decide to file suit.”

For the same reason, the court said, the corporation lacks the legal ability to file an OPRA court action. The entity cannot satisfy the court rule that its action be supported by the required verified complaint –no one in the corporation could attest to the truth of the claims. As a result, the Appellate Division dismissed the complaints.

It’s not clear what effect this ruling will have on future OPRA litigation. The AADARI could, of course, reorganize with new members to remedy the problem discussed above. But for now, this frequent requestor is precluded from making OPRA requests or litigating over prior denials of its purported requests.

A New Supreme Court OPRA Opinion–The County Prosecutors Association is Not Covered by OPRA or the Common Law Right to Public Records

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The Supreme Court recently issued a new opinion dealing with OPRA’s section that defines what is a public agency that’s subject to OPRA. The Court held that the County Prosecutors Association of New Jersey (CPANJ)–501(c) nonprofit made up of the 21 county prosecutors– is not a public agency under OPRA. The Court also held that CPANJ is not a public entity whose records are covered by the common law. ACLU v. CPANJ.

The Court determined that CPANJ is not (per OPRA’s definition of a covered public body) an “instrumentality” created by “political subdivisions.” The “core question” here was whether a county prosecutor is a “political subdivision.” The Court concluded (as did the Appellate Division) that a prosecutor is not a political subdivision, so CPANJ is not a public agency within the meaning of OPRA.

Significantly, the Court rejected the argument that CPANJ is covered by OPRA because it engages in governmental law enforcement functions. The Court emphasized that OPRA’s definition of a covered entity does not have a “governmental function test.” The only question, said the Court, is whether an entity falls within the language of OPRA’s definition of a public agency.

When I wrote about the Appellate Division’s decision in this case, I commented that the requestor’s effort to obtain records from CPANJ was actually unnecessary, given that it could use OPRA to seek from prosecutors’ offices, the Attorney General’s Office, or any other public agency these agencies’ communications with CPANJ. The Supreme Court alluded to this point in its opinion, noting that the “decision affirming the dismissal of the ACLU’s OPRA claim against CPANJ does not preclude the ACLU from requesting the same categories of documents from one or more public agencies subject to OPRA.”

Appellate Division Issues Useful Opinion on OPRA’s Exemption for Investigations in Progress

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The Appellate Division’s recent unpublished opinion in Benigno v. Office of the State Comptroller doesn’t break any new ground, but it contains helpful reminders of the legal standards that govern some common OPRA issues.

The requestor sought records concerning an investigation by the Office of the State Comptroller (OSC) into the training provided by the requestor’s company, “Street Cop Training,” to various police departments. (It’s not relevant to the OPRA issues, but here’s an article discussing the OSC’s report alleging the company conducted problematic training sessions).

The court upheld the denial of the request on various grounds. The records were confidential under OPRA’s exemption for an “investigation in progess.” The Appellate Division discussed how the records met all the criteria for this exemption: at the time of the request, the OSC was engaged in an investigation; the requested records were created as part of this investigation; and it would be “inimical to the public interest” to reveal the OSC’s “investigative playbook” to the party being investigated.

The court also held that the request was invalid as an overbroad request for information. The request consisted of demands for “all” documents, correspondence, etc. related to the investigation. As I’ve noted before, requestors keep making this type of improper request, even though the case law has consistently said that OPRA does not allow this.

Finally, the Appellate Division rejected the requestor’s effort to obtain the records under the common law, concluding that the need for confidentiality of the investigation far outweighed any interest in disclosure.

Supreme Court to Review Whether OPRA’s Exemptions Apply to Police Body Worn Camera Videos

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The Supreme Court recently announced that it has granted review of a case that presents the novel issue of whether OPRA exemptions apply to police body worn camera recordings. Fuster v. Boro of Chatham.

My post on the Appellate Division’s opinion in this matter explains this case in more detail. In brief, the requestor argues that the Legislature abrogated the application of OPRA exemptions to body worn camera (BWC) videos when it enacted the BWC statute in 2021.

OPRA clearly precludes disclosure of the video requested here, pursuant to the exemption established in case law that maintains the confidentiality of investigative records regarding a person who has not been arrested or charged. But the requestor argues that this OPRA exemption does not apply to a BWC, because the BWC permits withholding BWC videos only for certain reasons, which do not include this OPRA exemption.

The Appellate Division didn’t buy this argument, but it remains to be seen how the Supreme Court will interpret the interplay of the two statutes. The stakes in this case are quite high: acceptance of the requestor’s position would mean that OPRA effectively no longer applies to requests for police BWC recordings.

In addition to this important issue, the case presents another question that may have a significant impact on law enforcement agencies. In granting review, the Supreme Court also said that it will consider whether the BWC video in question should be released under the common law. This will require the Court to examine whether the strong privacy and confidentiality interests that typically support not disclosing investigatory records should apply here.

Once Again, Appellate Division Rules That A Request Requiring Research Is Invalid

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It’s a bedrock OPRA principle, stated consistently by the courts, that a request must be for a specific record, and cannot require the custodian to conduct research to fulfill the request. For this reason, the Appellate Division recently upheld the denial of a request that sought the “real reason” for the separations of various police officers from employment. Owoh v. Maple Shade Police Department.

The request asked the police department for personnel information that’s not exempt from disclosure under OPRA–the “[n]ames, date of hire, date of separation and reason for separation and salary of
individuals who…[were separated] in the last [five] years from [the] police department.” The department provided the requested information. For the reasons for separation, it properly indicated whether the officer resigned, retired or was terminated.

The requestor objected that this did not show the “real reason” for separation, which might be due to a plea agreement or a conviction. The court rejected this argument, concluding that the department complied with OPRA by giving the requestor the reasons for the officers’ separations.

Regarding the requestor’s interest in finding the so-called “real reasons” for officers’ separations from employment, the court indicated that the custodian was not obligated to try to figure out what records might contain such information. The court emphasized that the request did not identify any specific records that have the “real reasons,” and the custodian was not required to conduct research and analyze the agency’s records to attempt to find this information.