Category Archives: Uncategorized

Supreme Court: OPRA Requires Disclosure of Names and Addresses from Dog License Records

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The Supreme Court today issued an opinion settling a problematic question that has come up countless times since the enactment of OPRA: whether OPRA requires disclosure of the names and home addresses of individuals who provide this information to the government when applying for a dog license. In Bozzi v. Jersey City, the Court held that this personal information must be disclosed to an OPRA requestor.

The legal issue before the Court was whether OPRA’s privacy provision protects dog owners from having their names and addresses made available to the public. The Court said the privacy section does not apply, because there is no “colorable claim that the disclosure of the requested dog license records would invade a dog owner’s reasonable expectation of privacy.” According to the Court, “owning a dog is, inherently, a public endeavor,” and therefore an owner cannot expect privacy with regard to the name and address information submitted for purposes of obtaining a dog license.

The Court did say that other information contained in dog license records should be withheld, based on security concerns: breed information, the purpose of the dog (companion, service dog, or law enforcement), and the name of the dog. The last exclusion is based on the Court’s recognition that many people use the names of their pets as passwords or answers to security questions.

In a separate post, I’ll discuss my view of the Court’s reasoning, as well as the implications of the Bozzi opinion for future OPRA matters.

Attorney General Stays His Directive on Disclosure of Names of Disciplined Officers

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As discussed here, last week the Appellate Division rejected a challenge to the legality of the new Attorney General Directive requiring public disclosure of the names of officers who have committed serious disciplinary infractions. The challengers quickly sought Supreme Court review, and the Attorney General notified the Supreme Court that the State will not publish the names of disciplined officers until the Supreme Court resolves the case.

Appellate Division Addresses Novel Issue on OPRA’s Deadline for Responding to Requests

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Last week, in addition to releasing a major, precedential OPRA opinion, the Appellate Division issued an interesting unpublished opinion that also may have a significant impact on OPRA matters. In Smith v. Moorestown Twp., the Appellate Division addressed a novel issue under OPRA–when a requestor receives the requested record within 7 business days, may he appeal to the GRC on the basis that the custodian did not respond to the request “as soon as possible?”

In this case, Smith filed a GRC complaint 5 business days after submitting his request, and the custodian granted his request on the 6th business day. The GRC dismissed his complaint as “unripe,” because it was filed during the statutory 7-business-day period. But Smith pointed out that OPRA requires custodians to grant or deny access to a government record “as soon as possible, but not later than seven business days after receiving the request.” (Italics added). He argued that this language gave him the right to challenge whether the custodian here failed to respond as soon as possible to his request.

The Appellate Division rejected this argument because OPRA only permits appeals to the GRC by a person who is “denied access” to a record. Smith was not denied access to the record he requested. And, the court said, the statute does not define the custodian’s failure to respond “as soon as possible” as a denial of access; instead, only the failure to respond within 7 business days is deemed a denial under the statute.

The Smith case is the first time I’ve seen the statute’s “as soon as possible” language directly addressed by a court. The court’s conclusion that this phrase does not override the statute’s language concerning the right to challenge the custodian’s denial of access is important. Requestors often complain that their requests were not answered quickly enough. The Appellate Division’s opinion makes clear that this type of claim cannot be the basis of an appeal to the GRC, or a court complaint, if the custodian grants the request by the specific deadline set by the statute.

It’s worth noting that the argument raised in Smith is likely to come up more often in the near future, due to the recent amendment to OPRA suspending the 7-business day response deadline during public health emergencies. The amendment says that although this deadline does not apply, custodians must make an effort to answer requests “as soon as possible.”

An Important Appellate Division Opinion: OPRA Requests For Information From A Database May Only Be Made To The Agency That Maintains The Database

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Today the Appellate Division issued a published opinion that resolves a longstanding question: is an agency that has access to another agency’s database, but is not the custodian of that system, required to answer OPRA requests for information in the database? In this case of first impression, the court held that the answer is no.

In Simmons v. Mercado, the requestors sought from the Millville Police Department DWI, drug possession, and drug paraphernalia complaints and summonses. The request was denied on the basis that the police do not maintain these records; instead, they enter information into the Judiciary’s Electronic Complaint Disposition Record (eCDR) system, which generates complaints and summonses and is the repository of these records.

The trial judge ruled against the department, reasoning that it has access to the eCDR system and so must fulfill the OPRA request.

The Appellate Division firmly rejected this view. It held that the records in the CDR system are the records of the Judiciary, not the police department, and therefore the department is not the custodian of these records under OPRA. The fact that the police are required to input some information into this system does not make it a record of the police department for purposes of OPRA. Moreover, said the court, that the police have access to this system does not change the fact that the Judiciary maintains it. The court concluded that the request here should have been directed to the Judiciary, not the police department.

The Appellate Division’s ruling is highly significant. It affects many agencies, not just police departments. There are many situations where State and local agencies must submit information into electronic databases maintained by other agencies, and they often have access to these other agencies’ systems. As in Simmons, OPRA requests are often directed to the agency that is not the custodian of the database, but has access to it, raising the question of whether the agency must satisfy the request. The court has now issued a clear standard that resolves this problematic situation.

GRC Issues Guidance On Responding to OPRA Requests During COVID-19 Emergency

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The GRC has issued a “special statement” (under “OPRA Alerts” on its website) on how to apply the recent amendment to OPRA’, which abolishes the 7-business day response deadline during a period that has been declared a state of emergency, public health emergency, or state or local disaster emergency.

This guidance focuses on the amendment’s statement that although there is no deadline during such a period, the custodian has to “make a reasonable effort, as the circumstances permit, to respond …within seven business days or as soon as possible thereafter.” The GRC construes this requirement as equivalent to the longstanding ability of a custodian to extend the time to respond to an OPRA request where reasonably necessary.

While the GRC’s guidance makes sense, ideally, custodians will not need to litigate over whether they made a reasonable effort to respond to an OPRA request submitted during the current health crisis. Requestors presumably appreciate that due to the extraordinary emergency faced by New Jersey, agencies cannot necessarily answer OPRA requests quickly.

OPRA Amended Due To Coronavirus Crisis

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The Covid-19 crisis has prompted the Legislature to enact a change to OPRA’s section on the deadline for responding to OPRA requests.

The statute now provides that the 7-business day response deadline does not apply during a period that has been declared a state of emergency, public health emergency, or state or local disaster emergency. However, the statute further states that the custodian must “make a reasonable effort, as the circumstances permit, to respond …within seven business days or as soon as possible thereafter.”

I’m concerned that this well-intentioned law will have negative consequences in the future for public bodies, by casting doubt on what has been the settled rule that custodians may extend the 7-day period where reasonably necessary under the circumstances. The courts and the GRC have consistently upheld this principle, permitting extensions well beyond 7 days, as long as the custodian could show good cause for the delay.

However, the amended version of OPRA gives requestors an argument that now extensions are permissible only during an emergency period, and not for any other reason. I doubt the Legislature intended this result, but the legislative intent is not clear in this regard. Public bodies should expect to see requestors raise this argument in future OPRA matters, once we finally get past our current public health crisis period.

OPRA For New Jersey Prosecutors

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I had a great time last week presenting a full day training session to the Office of the Union County Prosecutor on “The Open Public Records Act for New Jersey Prosecutors.” The presentation, geared to assistant prosecutors, covered all the basics of OPRA, and also included in-depth discussion of topics such as access to law enforcement records, important OPRA case law, and OPRA litigation practice tips.

This presentation can be customized to the needs of any New Jersey law enforcement agency. Please email me at lewscheindlin@gmail.com if you would like more information about OPRA training.

Trial Judge Limits Requestor’s Ability To Continue To File OPRA Requests And Litigation

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I’ve previously noted that public bodies often have to deal with OPRA requestors who file an excessive number of requests or pursue frivolous OPRA litigation. A recent Appellate Division opinion shows that trial judges have the authority to stop this kind of conduct.

Garcia v. Bergen Prosecutor and NJ OAG involved a requestor who had made a number of invalid OPRA requests, and then litigated the ensuing denials, in connection with his fruitless efforts to overturn his murder conviction. The Appellate Division affirmed the trial court’s denial of his latest OPRA (and common law) requests, which were invalid for a number of reasons.

Of particular interest here, the court also noted that the trial judge had granted the motion of the Bergen Prosecutor’s Office to preclude plaintiff from making future OPRA requests concerning his conviction, without getting court approval. The trial judge determined that, pursuant to a judge’s “inherent authority to prevent the filing of frivolous litigation,” prior court approval of the future filing of complaints was necessary.

The Supreme Court said years ago that the courts have the power to grant applications by public bodies to restrain requestors who file excessive, unreasonable public records requests. The Garcia case and a 2018 case show that some trial courts recognize the need to exercise this power to protect the public against burdensome and frivolous OPRA requests and litigation.

Administrative Office of the Courts Issues Directive on How to Handle Suits Seeking Release of Dashcam Video of a Fatal Police Shooting

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In the wake of the Supreme Court’s Lyndhurst opinion, the AOC has issued a directive on how judges must handle lawsuits which seek release of a dashcam video of a fatal police shooting. The directive says that these are common law right to know cases which should be subject to the summary action court rule procedures that apply to OPRA cases.

This is a clear statement from the Judiciary that litigation over fatal police shooting videos should be handled as quickly as possible. Note, however, that the common law, unlike OPRA, does not have a deadline for the agency’s response to the request for disclosure. While a response to a common law request should not be unreasonably delayed, there’s no legal requirement that it be made within OPRA’s 7-business day time frame.

The Unsettled Issue Of How To Deal With OPRA Requests Involving A Third Party’s Confidentiality Interest

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Public bodies often struggle with requests for records in which third parties may claim a confidentiality interest. This problem may come up when a third party asserts a proprietary or investigatory interest in a record, and it occurs most frequently where a record contains information that may affect a person’s privacy interests. These requests present the custodian with a dilemma: under OPRA, the custodian must respect the privacy or confidentiality interest of any person, but the custodian typically is not able to explain the confidentiality arguments of that person.

The courts have not definitively said what procedure the custodian should follow when confronted with this situation. The Appellate Division has suggested that the party with the confidentiality interest should be given notice of the request (see, for example, Gannett v. Middlesex County), but the court has never expressly mandated this, nor has it explained precisely how the request should be handled by the public body after this notice is provided.

Hopefully, the Supreme Court will soon provide guidance on these issues. During oral argument this past January in IMO NJ State Fireman’s Assn Obligation to Provide Relief Applications, a pending case involving OPRA’s privacy exemption, the justices spent a lot of time discussing what procedure a custodian should follow when a third party has a privacy interest in the requested record. The fact that these questions came up doesn’t guarantee that they will be answered in the Court’s opinion, but it seems likely that the Court will deal with the procedural issues in some fashion.