OPRA has several exemptions that apply exclusively to higher education institutions, involving records concerning academic research, examinations, charitable donations and individual admission applications, as well as information regarding student records. Surprisingly, there is no case law dealing with any of these exemptions.

The GRC has occasionally issued decisions on the higher education exemptions. See, e.g., White v. William Paterson U. (2008-216) (audio tape of a student disciplinary hearing was properly redacted); Rosenbaum v. Rutgers (2002-91) (survey responses were exempt as academic research). But there are no court opinions providing precedential guidance on these sections of OPRA.

This occurred to me as I read the recent report on Rutgers football coach Kyle Flood’s attempt to get a professor to change the grade of a player on the team. The report contains Flood’s initial email to the professor, which discusses the request for a grade change and encloses a letter from the student concerning his behavior during the semester.

Flood sent the email through personal email accounts “to ensure there will be no public vetting of the correspondence.” The report explains that he did this to avoid an OPRA request. Apparently, Flood was not aware that an email by a public employee discussing a work matter is subject to OPRA, regardless of whether it was sent through a personal account or the public employer’s account.

The more important question for higher education institutions is whether, under OPRA, Flood’s email to the professor should be considered confidential under OPRA’s exemption for “information concerning student records…to the extent disclosure would reveal the identity of the student.” It is not clear whether the email constitutes information concerning student records, although it would seem that a discussion of a student’s performance in a course should meet this definition.

It’s also possible that the student’s identity would be revealed by disclosure of this type of email. Although this is a moot point in this matter, because the student in question has been identified in media reports, a college confronted with a similar OPRA request would have to make a delicate judgment as to whether disclosure might reveal the subject student’s identity.

The problem, as noted above, is that there is no case law interpreting the scope of OPRA’s exemption for student records, as well as the other exemptions that apply only to higher education institutions.

This recent Jersey Journal article discusses Jersey City’s denial of the Journal’s request for copies of Mayor Fulop’s private meetings calendar. Although the article suggests there is no legal justification for this denial, New Jersey case law directly states that the appointment calendars of public officials are exempt from disclosure under OPRA.

In a published 2005 opinion, Gannett New Jersey Partners v. County of Middlesex, the Appellate Division upheld the County’s denial of an OPRA request for County Counsel’s appointment book. The court stated that a Supreme Court opinion barring the public release of telephone numbers called by an official applies as well to the meeting information contained in an official’s appointment book.

As a result, New Jersey law is clear: OPRA does not permit the disclosure of public officials’ private calendars.

The Appellate Division’s web site says that tomorrow, September 17, 2015, the court will issue a published opinion in A.A. v.  Gramiccioni, et al. This case deals with an issue of first impression in New Jersey: whether an OPRA requestor may file a lawsuit anonymously to challenge the denial of the OPRA request.

Although OPRA permits requests to be made anonymously, the Rules of Court require litigants to disclose their identity in court filings. OPRA does not state that a requestor is exempt from the usual rule that litigants in judicial proceedings may not proceed anonymously. The A.A. opinion will be the first ruling issued by a New Jersey appellate court on whether OPRA authorizes a litigant to shield his or her identity in court.

This article reports that the Clifton Board of Education spent around $7000 over 2 months for 47 hours of work by a law firm on OPRA requests. This is a reminder of a problem that’s rarely discussed–it’s expensive for public bodies to comply with OPRA.

The article says that the law firm billed the Board for tasks such as analyzing OPRA requests and reviewing and redacting documents. Public bodies clearly need such legal services. As this blog has shown, so many OPRA requests raise difficult legal issues or present the risk of litigation. If anything, the amount of legal work cited here, approximately 23 hours per month, seems low. Larger public entities undoubtedly generate much more OPRA legal work on a daily basis.

Charges for legal services are just one of the costs of OPRA compliance. There are many other significant expenses that must be borne by the public body. Many agencies employ one or more individuals to serve exclusively as records custodians. OPRA litigation costs can be substantial, particularly where the public body must also pay the requestor’s attorney fees. And there is a major cost, in terms of the efficient provision of government services, when public employees must put aside their normal job duties while they spend time locating and reviewing records that may be responsive to an OPRA request.

This report by the New Jersey Department of Environmental Protection illustrates how expensive OPRA can be for large agencies. The report shows that, due to the large volume of requests, DEP has a separate office, with a 12-member staff, dedicated to OPRA requests. The report also says that DEP’s yearly costs of processing OPRA requests have been around $3 million.

An effort by open government advocates to change OPRA dramatically failed today, when the bill, S.782, was not approved by the Senate Budget and Appropriations Committee. The proposed legislation would have revised many longstanding requirements of New Jersey public records law and imposed additional burdens on public bodies and record custodians.

Here are just a few examples of the far-reaching, problematic changes to OPRA that were in S.782:

-A new definition of what constitutes advisory, consultative and deliberative material that would have greatly lessened the ability to withhold records showing agency deliberations

-A requirement that when any records are redacted, the custodian must supply the requestor with an affidavit–i.e., a sworn statement– describing each redacted document and the reason for redaction

-A prohibition against the promulgation of new regulations or executive orders exempting records from disclosure

-A provision that financial penalties will be imposed on custodians for gross negligence, replacing the stricter “knowing and willful” violation of law requirement