Author Archives: lscheindlin

The “Glomar” Response to OPRA Requests For Investigation Information

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An OPRA request to a law enforcement agency for records of its investigation of a particular person poses a knotty issue where, as is often the case, there has been no public disclosure of whether that individual is under investigation. In that situation, the agency would necessarily seek to protect the confidentiality of the investigation. But a response that the agency’s records are exempt (under, for example, OPRA’s investigatory or privacy exemptions) would reveal the existence of an investigation–a disclosure that itself would harm the affected person’s privacy interest.

FOIA case law solves this problem by permitting agencies to give the so-called Glomar response; this means that the agency tells the requestor that it neither confirms nor denies the existence of the records requested. The Justice Department explains that this response is necessary under FOIA to avoid revealing exempt information, such as whether someone is being investigated.

This concept is not limited to federal law. Recently, the New York Appellate Division held that the Glomar response is proper under New York’s public record law, and upheld the NYPD’s refusal to confirm or deny the existence of investigatory records concerning certain individuals. Matter of Abdur-Rashid.

No New Jersey court has ever addressed the validity of this type of response under OPRA. Nevertheless, the FOIA Glomar approach is a sensible way to avoid harming privacy and investigatory interests, which OPRA seeks to protect, and it ought to be followed in New Jersey.

Supreme Court Takes Another OPRA Case

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Today the Supreme Court announced that it has granted review of Verry v. Franklin Fire District No. 1, to determine whether a volunteer fire company that is a member of a Fire District is subject to OPRA.

This is the fourth OPRA case currently pending before the Court. joining Lyndhurst (criminal investigatory records), Gilleran (security exemptions), and Firemen’s Assn (declaratory judgment  procedure and privacy issues).

It’s extraordinary that the Supreme Court is considering so many OPRA cases. In general, the Court grants review of very few cases of any type, and with regard to OPRA, it has decided approximately 10 cases over the 15 years of OPRA’s existence. The Court’s recent acceptance of four OPRA matters shows that there are many important OPRA issues yet to be resolved.

The GRC Continues to Misinterpret the “Immediate Access” Requirement

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A few months ago, I discussed the GRC’s decision in Scheeler v. Dept. of Ed., which involved, in my view, a misinterpretation of OPRA’s provision requiring immediate access to certain types of records. The GRC recently denied the custodian’s request for reconsideration of this decision. Unfortunately, the reconsideration decision continues the GRC’s pattern of misapplying this aspect of the statute.

In this case, the requestor made a multi-part request, one part of which sought certain legal bills. After a brief extension period, the custodian responded to the entire request, providing some documents and advising that the agency did not have the requested legal bills. The GRC ruled that the custodian had violated OPRA by not immediately telling the requestor that there were no legal bills.

I think this conclusion is inconsistent with the statute, which says that citizens must be given immediate “access” to certain types of basic government documents, such as bills and contracts. There can be no violation of this right to “access” where the requested records do not exist.

In addition, I think that legal bills don’t fall under the immediate access requirement. They are significantly different from the other records covered by this provision–all of which can be quickly disclosed–because legal bills must be carefully reviewed for attorney-client privileged information before being released.

The Department of Education sought reconsideration of the GRC’s decision on a different basis. It argued that the records requested are not subject to the immediate access provision because they were not bills submitted to the Department for payment; instead, they were the documents submitted in litigation by a plaintiff in support of its application for an award of attorney fees.

The GRC rejected this argument, saying that the applicability of OPRA’s immediate access provision doesn’t depend on whether the bills were submitted to the agency. But this misses the whole point of OPRA’s immediate access provision. Its purpose is to require speedy disclosure of certain basic information held by public bodies, such as budgets, contracts, bills and employee salaries. Litigation records that are held by a different entity plainly do not come under the immediate access requirement.

There are no court cases on the immediate access provision, so the GRC’s decisions are the only precedent covering this section of the statute.

The GRC and the Issue of Access to Building Security Camera Footage

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In November 2015, the Supreme Court granted review in Gilleran v. Bloomfield Tp., to determine whether video recordings from a security camera mounted on a public building are exempt under OPRA. The Court has not yet heard oral argument in the case, so it’s likely that its opinion will not be issued until late 2016 or early 2017.

Meanwhile, OPRA requestors continue to seek disclosure of building security camera footage, and file challenges to the denial of access to these videos. In a recent decision, Jones v. Teaneck (interim decision April 28, 2016), the GRC  said that the custodian must prove, at a hearing before an ALJ, that the security camera recording in question there is exempt.

Suprisingly, the GRC did not mention the Gilleran case in this decision. This is particularly troubling because it’s possible that the Supreme Court may hold, in Gilleran, that a public body is not obligated to present specific evidence in support of maintaining the confidentiality of this record in each case. The Court could determine that there is always a strong security interest in the confidentiality of security camera footage, and rule that OPRA’s security exemption bars access to these recordings in all cases.

The GRC should have held the Jones case pending issuance of the Gilleran opinion, rather than requiring the parties to engage in litigation that may be rendered unnecessary by the Supreme Court’s decision.

 

 

2016 Case Law Update

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The first third of 2016 has seen the issuance by the courts of several major OPRA opinions. Notably, all of these rulings upheld the decision of the custodian.

-Paff v. Galloway Tp.

As I’ve previously said, this is the most important OPRA opinion in many years. The Appellate Division held, for the first time, that a public body is not required by OPRA to compile information from its computerized records to produce a requested report.

–C.G. v. Winslow Tp.

This trial court opinion is the first New Jersey published opinion on an issue that often comes up under OPRA– the extent of redactions that must be made, under federal law, of “personally identifiable information” within educational records concerning students. The court ruled that the school board had properly redacted parents’ and students’ initials, as well as the case docket numbers, shown on settlement documents.

–O’Boyle v. Longport

The Appellate Division upheld the confidentiality of information identifying properties that have made FEMA claims for flood damage. Again, this type of OPRA request often is made, but this is the first Appellate Division opinion to deal with this issue.

 

Privacy Rights: The Real Importance of the Supreme Court’s New OPRA Case

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The Supreme Court’s recent decision to review Matter of Fireman’s Ass’n Obligation to Provide Relief Application has attracted attention for presenting the novel issue of whether OPRA permits public agencies to file declaratory judgment suits concerning access to records. But the case also involves review of whether the Appellate Division correctly ordered disclosure of an applicant’s financial relief assistance award. This ruling raises crucial, unsettled issues concerning the extent that New Jersey law protects individuals’ privacy interests–issues of far greater public importance than the litigation procedure question presented by this matter.

I’ve previously expressed my view that the issue of whether agencies may file OPRA declaratory judgment suits is not especially significant. In most cases, agencies should have no need to bring a declaratory judgment action under OPRA–they can simply deny the request, and then defend that decision if a requestor files a court or GRC complaint. I doubt that declaratory judgment OPRA complaints will be filed very often, even if the Supreme Court rules that such actions are permissible.

In contrast, because public bodies often face OPRA requests for records that involve an expectation of privacy, the Supreme Court’s consideration of the privacy question in the Fireman’s Ass’n case is extremely significant. OPRA custodians have little case law guidance on how to handle the difficult issue of protecting privacy interests. The Supreme Court established the basic guidelines governing OPRA’s privacy provision in its 2009 Burnett opinion, but there are few published court opinions since then that have applied these standards.

The records sought in Fireman’s  Ass’n would reveal the recipient of financial relief payments and the amount paid. The Appellate Division determined that such information is subject to the expectation of privacy, because it shows that the award recipient was in financial distress. Typically, private information like this about a person’s financial status would be kept confidential. However, applying Burnett’s balancing test, the Appellate Division concluded that the interest in public disclosure, based on the allegation that there may have been some impropriety in granting an award to the applicant in question, outweighed the privacy interest.

The Appellate Division’s holding only affects the specific records in question in the case, but of course any discussion by the Supreme Court has much broader precedential value. The Supreme Court’s clarification of how to resolve privacy concerns raised by OPRA requests is sure to have an impact on access to many types of records.

Will the Supreme Court agree with the Appellate Division’s analysis, or give greater weight to the privacy interests that are present here? The answer to this question will affect how courts and record custodians should evaluate all future privacy issues raised by OPRA requests, and consequently will have an enormous effect on privacy rights in New Jersey.

Supreme Court To Decide Whether Public Bodies May File OPRA Declaratory Judgment Suits

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The Supreme Court announced that it has added a new OPRA case to its docket. The case, with the ungainly title of Matter of NJ Firemens Assn Obligation to Provide Relief Applications, involves two issues: (1) whether a public body may file a declaratory judgment action concerning whether requested records may be withheld, and (2) whether the requestor should be granted access to the records sought here, which show the name of a particular applicant for a financial relief assistance award and the amount awarded.

The Appellate Division determined that OPRA does not allow record custodians to bring declaratory actions against requestors to enforce the claimed right to withhold the requested records. The court also ruled that the requested relief application records had to be disclosed, concluding that the requestor’s interest in disclosure of the information about one specific applicant outweighed the applicant’s privacy interests.

This is the third OPRA case now pending before the Court, joining Lyndhurst (criminal investigatory records) and Gilleran (security exemptions).

 

More Thoughts on the Paff v. Galloway Opinion

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In a recent post I called this new Appellate Division opinion the most important OPRA court opinion issued in years. What’s so significant about a ruling that OPRA does not require a town to create a log describing the emails of certain employees? Because in doing so, the court put to rest the notion, aggressively advanced by many requestors, that OPRA can be used to force public bodies to produce reports from the information contained in computer databases.

Since OPRA’s enactment, many requestors have claimed that the statute requires that custodians perform research and collate information for them. Although the courts have consistently rejected such OPRA requests, no court had dealt with the related question  of whether OPRA imposes on custodians the duty to query the agency’s databases to produce whatever report the requestor seeks. The Appellate Division has now made clear that OPRA does not have such a requirement.

This ruling has real, practical consequences. As I’ve noted before, handling OPRA requests is quite costly. One significant cost is that when agency employees are creating new reports for requestors, they are not performing their other responsibilities, and government efficiency suffers. The harm to government operations is clear if, as the requestor argued in the Galloway case, OPRA mandates that public employees spend their time serving as research staff for all requestors.

Fortunately, the court recognized that this is not the intent of OPRA and confirmed that custodians do not have to create reports, lists and other compilations for requestors.

Appellate Division Issues The Most Important OPRA Opinion In Years

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Since OPRA’s enactment, on an almost daily basis custodians have struggled with the issue of whether they  must comply with a request that they produce a report showing certain information extracted from an agency’s computer databases. See this post for additional discussion of the question. Although the compilation sought can be put together by running an electronic search, the statute does not clearly require custodians to perform this function and produce the requested report.

In a precedential opinion issued today, Paff v. Galloway Township, the Appellate Division unambiguously held that OPRA does not permit this type of request, because it involves the creation of a new record. The court stated that “OPRA does not require the creation of a new government record that does not exist at the time of a request, even if the information sought to be included in the new government record is stored or maintained electronically in other government records.”

The requestor in this case had asked the Township for a log showing the sender, recipient, date and subject matter of emails of certain Township employees over a specific period of time. He argued that OPRA requires the log to be disclosed because the information requested is part of the emails, which are government records, and the data can be easily compiled into a log. But the court rejected this position because the record that was actually requested–the email log itself–simply did not exist, and therefore a new record would have to be created.

Critically, the court noted that the ease of compiling a particular log is not relevant. It understood that a contrary ruling would have “far-reaching implications,” in requiring public agencies to produce many kinds of new lists and compilations.

This is why this opinion is so significant. The requestor’s argument did not apply only to email logs; it covered any compilation of information drawn from any agency database. If the requestor’s position had been upheld, OPRA would have become a vehicle for requestors to require public bodies to compile and produce an unlimited variety of reports from the agency’s records. This result is completely contrary to the basic principle that OPRA does not obligate record custodians to research and collate information for requestors.

While other OPRA cases, such as ones involving law enforcement records, may receive more press attention, the Paff v. Galloway opinion will have a far greater impact on the daily work of all record custodians in New Jersey.

The Cost To The Public Of Unsuccessful OPRA Lawsuits Brought By Requestors

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Recent articles, such as this one, have reported on the statistic that the State has paid around $1 million over the past four years in plaintiffs’ attorney fees, for OPRA lawsuits that have been either lost or settled by the State. The premise of these articles is that the government’s improper withholding of records costs the State’s taxpayers a lot of money. Unfortunately, these articles don’t report on the other side of the coin–the many cases where requestors have litigated and lost their OPRA claims.

In my experience, the State and other public bodies win far more OPRA cases than they lose. This means that taxpayers are paying much more for requestors’ unsuccessful litigation: in all of these cases, public bodies must pay for attorneys to respond to the incorrect OPRA claims made by requestors.

A recent Appellate Division OPRA opinion demonstrates this point. Signature Information Solutions v. Jersey City MUA, did not involve the withholding of records; the public body provided a report to the requestor that satisfied the request. Nor was this a case where the press or a citizen sought records to learn about a governmental issue; instead, the requestor was a for-profit company that sought data so that it could sell this public information to others. The case was simply about the requestor’s claim for attorney fees, based on its argument that it had prevailed in the litigation.

The court firmly rejected this claim, holding that the requestor could not recover attorney fees because its request was invalid, and the public body did not improperly deny access to records.

Thus, the MUA–which did not violate OPRA–had to pay its own attorneys a presumably significant amount to defend it, not just in the trial court, but also on appeal.

This is just one example of the common situation where taxpayers have to bear the costs of OPRA requestors’ unsuccessful litigation.