Author Archives: lscheindlin

Analysis of the Lyndhurst Supreme Court Oral Argument

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The Supreme Court held oral argument a few days ago in the Lyndhurst case, involving OPRA’s criminal investigatory records provisions. The outcome of a case cannot be predicted with absolute certainty based on what is said at the argument, but nevertheless, after watching the argument, I’ll make a few predictions about what the Supreme Court will rule in this important appeal.

(1) Most records concerning a criminal investigation will be confidential

The requestor here argued in the trial court and Appellate Division that all records that are routinely part of an investigation must be disclosed, including CAD reports, log book notations, vehicle logs, activity logs, daily statistical sheets, daily bulletins, and all other police reports, such as incident reports, operations reports and investigation reports.

However, the requestor apparently withdrew this argument before the Supreme Court. Its attorney told the justices his client’s interest primarily was to obtain disclosure of police dash cam videos and use of force reports, and there was no discussion during the argument of all the other records mentioned above. This means that the Appellate Division’s ruling that the above records are exempt under OPRA should stand.

(2) Most police dash cam videos related to a criminal matter will be confidential, at least while a criminal prosecution is pending

The justices did not indicate where they stand on the issue of whether a dash cam video is an exempt criminal investigatory record, but they were clearly uncomfortable with requiring immediate disclosure of such videos. Several justices recognized that disclosure can corrupt witnesses’ testimony about the incident and thereby harm a prosecution. Also, everyone seemed to agree that privacy interests of individuals shown in the video must be considered.

I think the Court will say that these videos may be withheld during an investigation, pursuant to NJSA 47:1A-3’s “inimical to the public interest” standard.

(3) Use of force reports directly related to a criminal matter will be held confidential

I saw no consensus on the question of access to UFRs, so it’s difficult to make a prediction on this one. However, some justices noted the case law that says that administrative directives do not meet the “required by law” standard, which suggests that they may reject the requestor’s argument that UFRs are not criminal investigatory records because they are required by an Attorney General’s directive.

 

Supreme Court Schedules Oral Argument in Lyndhurst Case

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On Wednesday, November 7, at 1 pm, the Supreme Court will hear argument in the Lyndhurst case, concerning OPRA’s exemption for criminal investigatory records. As I’ve noted before (see, for example, here and here), this is a seminal OPRA case, which will establish new law regarding the extent of access to a wide variety of investigatory material.

The Supreme Court held argument in another law-enforcement-related OPRA case, Gilleran, around six weeks ago. The Supreme Court will probably issue its opinions in Gilleran and Lyndhurst around the same time. This means that, perhaps by early in 2017, there could be new legal standards governing whether many different types of law enforcement records  are confidential or accessible.

 

 

OPRA’s Fines Can Be Imposed On Any Public Official

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A recent Appellate Division opinion is a reminder that it’s not just record custodians who face the risk of a $1000 fine for violating OPRA; any public employee, appointee or elected official may be penalized.

The issue actually addressed in the case, Johnson v. Boro of Oceanport, was whether the official had waited too long to ask for reconsideration of the GRC decision that fined him $1000. The court held that the request, made 55 months after the decision, was grossly late and therefore the agency properly refused to consider it.

The more important aspect of this opinion, for all New Jersey public employees and officials, is that the person who was fined for violating OPRA was a Borough councilman. The councilman’s violation was that he failed to respond to several requests made by the custodian for records responsive to an OPRA request.

In prior posts, I’ve highlighted the costs to the government of failing to comply with OPRA. Government officials and employees should not overlook that there are significant potential personal costs of noncompliance as well.

 

 

How Not To Handle A Third Party’s Claim That A Record Is Confidential

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In Collingswood Bd. of Ed. v. McLoughlin, the Board of Education confronted an OPRA issue that often comes up: how to handle an OPRA request for a record that appears to be a public record, but a third party claims that it is confidential.

The record in question was an investigatory report concerning the Board’s decision not to reappoint a coach, Joseph McLoughlin. McLoughlin notified the Board that his position was that the report was not a government record and that he would file suit to prevent its release. However, without waiting for such a suit to be brought, the Board filed a declaratory judgment action seeking a judgment that the report was a public record. Its own complaint stated that the report was disclosable under OPRA. The trial court agreed that the record had to be disclosed under OPRA.

The Appellate Division held that under the In Re Firemens Assn. opinion, a custodian may not file an OPRA declaratory judgment action, and it remanded to the trial court to calculate an additional attorney fee award that would cover the time spent by the requestors in litigating the declaratory judgment action.

This attorney fee award could have been avoided. As I’ve previously discussed (see this post), when a third party claims a confidentiality interest in a document that the custodian believes must be released under OPRA, the custodian should advise the party that the record will be released by a certain date, in order to give this party the opportunity to initiate legal action to prevent disclosure.

Following this procedure ensures that the litigation over the record, if any, is between the requestor and the party that actually claims confidentiality, and minimizes the litigation costs of the public body.

 

OPRA and Home Address Privacy

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A few weeks ago, I made a presentation to an audience of about 100 government attorneys and OPRA custodians on OPRA’s privacy requirements. The attendees had questions on a variety of topics, but many were particularly concerned about how to handle OPRA requests for home addresses. As I’ve pointed out previously, New Jersey courts have never resolved the question of whether OPRA requires disclosure of individuals’ home addresses.

The situation is different in Pennsylvania, which has a public records statute that is similar to OPRA. On October 18, 2016, the Pennsylvania Supreme Court held that under this statute, home addresses are protected by individuals’ privacy interests. PSEA v. Commonwealth of Pa. In upholding the denial of a request for the addresses of public employees, the Court conducted a balancing test and determined that the strong privacy right of employees in their home addresses outweighs the nonexistent public interest in disclosure of this personal information.

GRC Holds, For The First Time, That Only New Jersey Citizens May Make OPRA Requests

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In a decision issued on October  4, 2016, the GRC departed from its precedent of the past 14 years and ruled that only New Jersey citizens are permitted to make OPRA requests. Scheeler v. Burlington Tp. (2015-93).

The GRC primarily relied on a few recent trial court opinions that determined that the Legislature intended, in enacting OPRA, to prohibit those from outside the state from obtaining New Jersey government records. As I’ve discussed previously, I think this result is both wrong as a matter of law and unenforceable in practice.

In any event, the question of whether non-citizens may make OPRA requests is now before the Appellate Division, so by next year, when the court renders its opinion, the GRC’s position on the issue will no longer matter.

Appellate Division: Motor Vehicle Accident Reports May Be Withheld Under OPRA’s Investigation In Progress Exemption

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The Appellate Division recently held that the “crash investigation report” that police officers must file after investigating a motor vehicle accident may be withheld from disclosure under OPRA’s exemption for investigations in progress. North Jersey Media v. Tp. of Nutley.

Although the opinion is unpublished, and therefore not precedential, it involves an issue not previously addressed under OPRA–the alleged conflict between NJSA 47:1A-3a, which allows records to be withheld while an investigation is in progress, and NJSA 39:4-131, which says that motor vehicle accident reports are public records. In this case, the Essex Prosecutor initially denied an OPRA request for a crash report, because the Prosecutor’s Office was still investigating the accident. When it completed its investigation, it released the crash report. The requestor, relying on NJSA 39:4-131, argued that the crash report should have been immediately disclosed, despite the pending investigation.

The Appellate Division rejected this argument, on the basis that the more recent OPRA provision, granting confidentiality where release of an investigatory record will be inimical to the public interest, superseded the older Title 39 statute.

This result is clearly correct. In fact, in my view, the requestor’s argument is frivolous. The whole point of NJSA 47:1A-3a is to provide confidentiality to government records that otherwise must be disclosed, to avoid jeopardizing an ongoing investigation. Yet under the requestor’s argument, this provision would be meaningless, and agencies would have to disclose records even when to do so would be detrimental to the public interest.

Supreme Court Schedules Argument in Gilleran Case

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The Supreme Court will hear oral argument on September 13 in the OPRA case of Gilleran v. Tp. of Bloomfield. This case presents the question of whether OPRA requires access to videos from building surveillance cameras. It involves several important issues that the Supreme Court has never addressed: the scope of OPRA’s exemptions for security and safety, as well as what constitutes a substantially disruptive OPRA request.

See here and here for more detail on the issues presented by this case.

Appellate Division: OPRA Allows Agencies To Give The Glomar Response To Requests

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In an important opinion, the Appellate Division held yesterday, for the first time under OPRA, that an agency may decline to confirm or deny the existence of responsive records in answering a request for records concerning a person who has not been charged with a crime. North Jersey Media v. Bergen County Prosecutor’s Office.

As I explained in this post, this approach (known as the “Glomar” response) has long been permitted under FOIA as a way to avoid the disclosure of exempt, sensitive information, such as whether an individual was or is under investigation. The Appellate Division held that OPRA allows the “neither confirm nor deny” response for the same reason.

Specifically, the court said that OPRA’s exemption for a grant of confidentiality recognized by case law (N.J.S.A. 47:1A-9b) applies here. The court found that case law has long recognized the need for confidentiality of investigative records regarding a person who has not been arrested or charged.

 

 

 

Summer 2016 OPRA Court Opinions

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Summer is typically a slow period for the New Jersey courts, but since Memorial Day of this year, there have been several important OPRA opinions and orders.

The Appellate Division issued a significant, published opinion in June. In Paff v. Ocean County Prosecutor, the court held that police vehicle dashcams are not covered by OPRA’s criminal investigatory exemption. The court also held that OPRA’s privacy exemption did not apply to drivers and passengers shown in these videos. As discussed here, this case is likely headed to the Supreme Court.

The Appellate Division also issued a few unpublished opinions that dealt with important OPRA topics:

–North Jersey Media v. NJ Dept. of Law and Public Safety (names of State employees who seek legal representation or indemnification from the Attorney General are exempt)

–NY Public Radio v. Gov. Office (outside activity records of public employees are exempt under OPRA and not disclosable under common law)

–Brennan v. Bergen County Prosecutor (names and addresses of bidders at auction of sports memorabilia held exempt under privacy exemption)

In addition, during the summer the Supreme Court granted review in two OPRA cases:

–Paff v. Galloway Twp. (whether OPRA requires public bodies to produce requested reports from the information contained in computer databases)

–Verry v. Franklin Fire Dist. (whether a volunteer fire company that is a member of a Fire District is subject to OPRA)