The Trump Administration recently announced that it would not release to the public the logs showing the names of visitors to the White House. Its position apparently is that FOIA does not require disclosure of the logs, because all White House records are exempted from that statute.

Would a record of visitors to a government office be disclosable under OPRA? No court has ruled on this issue, but it seems to me this would not be a public record. It’s settled law that officials’ appointment calendars are exempt under OPRA. A visitor log reveals the same confidential information as an appointment calendar–the identity of those who meet with government officials.

Requestors who successfully challenge OPRA denials are entitled to attorney fees, and as a result, public bodies often have to pay large fee awards. But public bodies can fight against excessive attorney fee demands made by requestors.

An unpublished Appellate Division opinion, issued today, illustrates one way this can be done. In Stern v. Lakewood Volunteer Fire Company, the court determined that the request had been improperly denied because the fire companies were subject to OPRA. The court also upheld the trial judge’s decision to award $6300 in attorney fees, well below the requestor’s demand for $25,000.

The attorney’s hourly rate of $315 was granted, but the court said that this would be awarded for 20 hours of work, rather than the 50 hours claimed by the requestor. The court based this significant reduction on the fact that the issue in the case, whether OPRA applies to fire companies, was not novel and did not require a lot of research.

Notably, the Appellate Division also took into account the minimal level of finances of the fire companies. It said that in calculating an appropriate fee award, it is relevant to consider that fire companies are not public entities with “almost inexhaustible resources” (quoting the Supreme Court’s opinion on OPRA attorney fee awards, NJDPM v. NJ Dept. of Corrections).

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.

The Supreme Court’s Civil Practice Committee has rejected a proposal that New Jersey’s court rules be amended to permit plaintiffs to file anonymous OPRA complaints. See p. 116 of the 2016 Committee Report.

The proposal that the court rules authorize anonymous OPRA complaints, made by an individual identified only as a non-attorney involved in several OPRA cases, was based on the fact that OPRA allows anonymous requests to be submitted. The “vast majority” of the Committee rejected the requested rule change. This decision was based on the Appellate Division’s 2015 opinion in A.A. v. Gramiccioni, where the court held that there is no reason to permit OPRA plaintiffs to prosecute litigation anonymously.

The Committee’s action puts to rest any possibility that anonymous OPRA court complaints may be filed. The GRC does accept anonymous complaints, even though, as I’ve discussed, this policy is contrary to law.

As discussed in this article, a Cape May County trial court judge recently dismissed an OPRA complaint on the ground that OPRA permits requests only by New Jersey citizens. The article notes that a Burlington County trial judge reached the opposite conclusion in another case a few weeks ago. The public body in that case has appealed, and the requestor’s attorney in the Cape May case said that her client will appeal as well.

As a result, the Appellate Division will be resolving this novel question of whether the Legislature intended to preclude those who are not New Jersey citizens from making OPRA requests. The appellate court probably won’t issue its decision until the middle of 2017. Until then, because of the conflicting trial court decisions, there’s no way to predict how another trial judge will rule if a public body denies a non-citizen’s OPRA request.

As noted here, my view is that it really doesn’t matter how the courts ultimately resolve the issue, because it is impossible to stop requestors from other states from obtaining New Jersey public records. If the Appellate Division interprets OPRA to mean that only New Jersey citizens may make requests, non-citizens will get around the prohibition by submitting  anonymous requests, or by having a New Jersey citizen make OPRA requests for them.

I’ve previously pointed out that the GRC’s interpretation of the “immediate access” provision is unrealistic. The agency has said that custodians must respond to these requests “at once,” and has found custodians in violation of this section of the statute where they’ve provided the records within only 4 days of receiving the request.

A recent GRC decision continues this strict approach. In Scheeler v. Office of Attorney General (2014-236), the requestor asked for legal bills submitted by a law firm over an 8-month period. Three business days later, the custodian provided 150 pages of responsive records. The GRC  held that the custodian violated OPRA because she did not immediately write to the requestor to advise that some time would be needed to review and release the records.

I don’t think this interpretation is consistent with OPRA.  A requestor has to appreciate that it is impossible for a custodian to release several months’ worth of attorney bills instantly. As the GRC acknowledged, because attorney bills must be carefully reviewed for privileged information, they ordinarily cannot be disclosed quickly. In other words, a custodian simply cannot release attorney bills immediately upon receiving a request. Here, the custodian disclosed a large number of such records only 3 days after receiving the request, which is surely the type of reasonable outcome the statute intends.

There are no court cases addressing this issue, so custodians must keep in mind the GRC’s hard line approach in handling “immediate access” requests.

This article says there are currently two pending trial court cases in which public bodies are claiming that the OPRA request must be denied because the requestor is not a citizen of New Jersey. This defense is rarely raised in OPRA cases, probably because winning this argument will provide little benefit to public bodies.

The problem is that even if a court were to agree that non-citizens are not allowed to make OPRA requests, this would not prevent such requests. A non-citizen could get around the prohibition by submitting an anonymous request, as permitted by the statute, or by having a New Jersey citizen make the request for him. In short, the prohibition would be largely unenforceable.

Aside from this practical problem, the legal argument that non-citizens are barred from making OPRA requests strikes me as unlikely to succeed. Construing the statute as limited to citizens would mean that many of the news companies that regularly cover New Jersey affairs–such as the Philadelphia Inquirer, the New York Times and Philadelphia and New York TV stations–are prohibited from submitting OPRA requests. I doubt that the Legislature intended this result.

The statute’s language does not clearly  say that non-citizens are barred from using OPRA to obtain records. The sections of OPRA that deal with requests and their denial refer to “persons” making the requests, not “citizens,” N.J.S.A. 47:1A-5 and -6. The citizenship argument is based on a single sentence in OPRA, which declares it to be New Jersey’s policy that government records “shall be readily accessible for inspection, copying, or examination by the citizens of this State.” However, this sentence does not say that an OPRA request may only be made by a State citizen.

In any event, as noted, a public body has little to gain, as a practical matter, from attempting to persuade a court to construe OPRA as forbidding requests from non-citizens.

The N.J. Department of Agriculture was the object of much derision recently for denying an OPRA request for a dolphin autopsy report on the basis of the exemption for information related to a medical diagnosis or evaluation–in other words, stating that it was protecting an animal’s expectation of privacy. The State subsequently released the report, saying the OPRA denial had been incorrect.

Why is this silly situation of interest to all records custodians? Because it provides a reminder of what a custodian should do when confronted with a request for a record that a third party claims is confidential.

In the dolphin case, the Department performed the autopsy report under an agreement with an organization called the Marine Mammal Stranding Center, which asked the Department not to release its findings publicly. It’s fair to assume that the custodian was attempting to accommodate the Center’s interest in confidentiality when he initially denied the OPRA request.

Public bodies often receive requests for records in which third parties may claim a confidentiality interest. When this occurs, and there is no other applicable OPRA exemption, the custodian should not simply deny the request. Instead, the custodian should notify the third party of the OPRA request, and give it the opportunity to initiate legal action to preclude potential release of the record in question.

This procedure appropriately places the burden on the party with the actual interest in preventing disclosure of the record. That party, rather than the public body, should have to articulate to the public why it believes a record in the possession of the government should not be released. And if the requestor disputes the claim of confidentiality, the public body will not need to be actively involved in the litigation between the requestor and the third party.