Category Archives: Supreme Court cases

The Supreme Court’s Firemen’s Assn. Opinion Is A Victory For Privacy Rights

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I recently presented a seminar to a large group of government attorneys and record custodians on OPRA’s privacy provision. One of the themes of my presentation was that the courts have issued only a handful of precedential opinions on this aspect of OPRA, providing agencies with little guidance on how to handle privacy issues.

Coincidentally, at practically the same time I was making my presentation, the Supreme Court issued an important opinion on OPRA’s privacy exemption, Matter of NJ State Firemen’s Assn Obligation to Provide Relief Applications. As I predicted after the oral argument of this case, the Court came down firmly on the side of privacy in this case, and denied the request for disclosure of a firefighter’s relief award.

This opinion is especially notable because it shows that the Court gave heavy weight to the privacy interests that individuals have in their personal financial information.  The Court emphasized the strong need to protect these privacy interests and saw no real public interest in access to the information in question.

It can no longer be said that there’s a lack of judicial guidance on OPRA and privacy. The Supreme Court has clarified that privacy interests must be favored by public agencies, despite OPRA’s general policy of public access to information held by the government.

Important OPRA Issues Left Open By The Supreme Court’s Lyndhurst Opinion

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The Supreme Court’s recent landmark opinion in the Lyndhurst case settled some key public records issues, with the Court holding that use of force reports are not exempt under OPRA; investigatory reports, witness statements and other investigatory records are confidential, under both OPRA and the common law; and dashcam videos of fatal police shootings are accessible only under the common law.

But the Court’s opinion also left open a number of major OPRA issues. Here are a few:

-Whether the criminal investigatory exemption applies to MVRs operated under a local police department’s policy. The Court will address this issue in Paff v. Ocean County Prosecutor, a case that has not yet been argued.

-Whether the criminal investigatory exemption applies to MVRs of a routine traffic stop. The Lyndhurst Court noted that it was not deciding this issue, because the facts before it clearly involved a criminal investigation.

-Application of OPRA’s privacy protection to the people shown in MVRs. The Court didn’t mention this issue in ordering release of the videos; presumably, no one involved in the case claimed a privacy interest. Again, this question will be considered by the Supreme Court in the Paff case.

-Accessibility of police body camera videos.

-Application of OPRA’s ongoing investigation exemption. The Court provided guidance on this section of OPRA, but it was mostly in the context of investigations into fatal police shootings. The parameters of this exemption will need to be more specifically defined in future cases dealing with the more common types of investigations–criminal investigations not involving police shootings, and the many investigations conducted by non-law enforcement agencies.

 

The Supreme Court’s Lyndhurst Opinion Ensures The Confidentiality Of Most Law Enforcement Records

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The Supreme Court’s recent opinion in Lyndhurst has been hailed in press reports as a big victory for the transparency of police departments. But the opposite is true: the Lyndhurst opinion will enable law enforcement agencies to maintain the confidentiality of almost every record related to criminal investigations.

While the Court ordered disclosure of a few records in this case (use of force reports and the dashcam video of a fatal police shooting), it held that the overwhelming majority of police investigative materials are not accessible to the public under OPRA.

The Court held that investigatory reports, witness statements and similar investigatory records are confidential, under both OPRA and the common law. The Court also did not disturb the Appellate Division’s ruling in this case that OPRA exempts from disclosure as criminal investigatory records other items generated by the police in investigating a crime, such as log book notations, vehicle logs, activity logs, daily statistical sheets, daily bulletins, incident reports, and operations reports.

The Court also held that all dashcam videos in connection with a potential crime are confidential under OPRA. The Court said that only dashcam videos of fatal police shootings are accessible under the common law. This means that most dashcam videos, which are taken in criminal matters that do not involve a fatal police shooting, are confidential.

In short, the Court’s ruling means that nearly every record connected with a criminal investigation is not disclosable under OPRA.

It’s also notable that the opinion shows the Court’s recognition of the important law enforcement interests served by ensuring confidentiality of investigative records. For example, it emphasized that early disclosure of investigative materials is against the public interest. As another example, the Court rejected the plaintiff’s position that the criminal investigatory exemption is extremely narrow. The Court instead broadly construed the exemption’s language, concerning records that “pertain to an investigation,” as covering all records connected with the pursuit or apprehension of a suspect.

Public bodies should understand that the Lyndhurst Supreme Court opinion makes clear that OPRA favors the confidentiality of law enforcement records. This opinion supports a broad interpretation of the reach of OPRA’s criminal investigatory records exemption, and allows most records connected with a police investigation to be withheld.

 

Supreme Court’s Lyndhurst Opinion: Dashcam Videos Are Exempt Criminal Investigatory Records, Use of Force Reports Are Not

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The Supreme Court issued its opinion in the Lyndhurst case today. This landmark ruling governs whether key criminal investigatory records–police vehicle dashcam recordings (MVRs), use of force reports (UFRs), investigative reports and witness statements–are confidential under OPRA.

The Supreme Court held that MVRs pertaining to a criminal matter are covered by OPRA’s criminal investigatory exemption. Similarly, it determined that investigative reports and witness statements concerning a criminal investigation are subject to this exemption.

The Court held that UFRs are not covered by the criminal investigatory exemption: because these documents are mandated by an Attorney General law enforcement directive, they are required by law to be made, and therefore do not satisfy OPRA’s standard for the criminal investigatory record exemption. In effect, the Court reinstated what had been the law since 2009, when the Appellate Division ruled, in O’Shea v. West Milford, that UFRs are not exempt for this reason.

The Supreme Court did order release of the MVRs at issue in this case under the common law, finding that the public’s strong interest in information about the police shooting of a civilian outweighed the confidentiality interests in the MVRs. But the Court reached the opposite conclusion with regard to investigative reports and witness statements, holding that they are confidential under the common law.

The Lyndhurst opinion is critically important for all public bodies, not just law enforcement agencies. In addition to analyzing the criminal investigatory records exemption for the first time, the Supreme Court also provided guidance, again for the first time, on the ongoing investigation exemption (section 3a of OPRA), which covers all investigations. In future posts, I’ll discuss the many implications of the opinion for public bodies in their administration of OPRA.

Problems And Issues Created By The Supreme Court’s New Opinion On Electronic Records

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The Supreme Court’s opinion in Paff v. Galloway Tp. changes the obligations of records custodians and raises questions with regard to several OPRA issues that had previously been clear. Here are some of the concerns resulting from the opinion.

-The Court’s holding that information in a database is a government record means that requestors can require public bodies to produce an unlimited variety of reports. The Court made clear that custodians must engage in computer programming to produce whatever compilation of information the requestor wants, and may charge a fee for this only where a substantial amount of programming or manipulation is necessary.

-The opinion casts doubt on the viability of the basic principle that OPRA does not obligate record custodians to research and collate information for requestors. The Court said that OPRA does not require the custodian to do research. However, its opinion does require custodians to compile and collate disparate pieces of electronic information, tasks which are typically thought to be inconsistent with the custodian’s duty.

-Further confusion is caused by the Court’s comment that the case law stating OPRA does not allow requests for information is incorrect, as applied to electronic records. This case law says that a valid request must ask for records, not simply pose questions. Is the Supreme Court saying that this is no longer correct, and requests for electronic records that ask questions must be answered?

-The opinion creates uncertainty as to whether GRC decisions are entitled to any weight or deference in court. The Court ruled that GRC informal guidance is entitled to no deference, and noted that the Superior Court should not defer to GRC decisions, but it then seemed to contradict these statements by commenting that the GRC’s interpretation of OPRA is entitled to deference in appellate review of GRC decisions.

Supreme Court Issues Momentous Opinion: Information In A Database Is Government Record

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The Supreme Court issued a groundbreaking OPRA opinion today, holding for the first time that requests for reports generated from information within electronic databases are valid. Paff v. Galloway Tp.

The request in this case sought a log showing the sender, recipient, date and subject matter of emails of certain Township employees over a specific period of time. The Township, of course, had the emails covered by the request, but would have to create a document displaying the information from these emails in the manner demanded by the request. Based on the longstanding rule that OPRA does not require the creation of a new record, the Appellate Division held that this request was invalid. But as I predicted after watching oral argument, the Supreme Court disagreed.

The Court ruled that where information is stored electronically, extracting it does not involve the creation of a new record. This holding was based on the  conclusion that “[b]y OPRA’s language, information in electronic form, even if part of a larger document, is itself a government record.”

The Court recognized that although the request here was valid, the Township had to be given an opportunity to assert any exemptions or other arguments (such as substantial disruption of agency operations) that might preclude disclosure of the information in question.

As discussed in this post, the holding that OPRA requires the compilation of a report from a database has substantial consequences for public bodies and their records custodians. In addition,  the Supreme Court’s new opinion has problematic ramifications for other aspects of OPRA law and practice, which I’ll discuss in subsequent posts.

 

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.

 

Supreme Court To Review Whether Home Addresses Must Be Disclosed

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Custodians often struggle with OPRA requests that involve individuals’ home addresses. No court has issued a definitive, published opinion concerning OPRA’s privacy exemption and home addresses.

Fortunately, the Supreme Court is going to provide long-awaited guidance on this issue. On May 8th, the Court announced that it has granted review in Brennan v. Bergen County Prosecutor, which presents the question, according to the Court’s website, of whether OPRA and the common law compel disclosure of the names and addresses of people who successfully bid at an auction of public property.

See this post for a discussion of the Appellate Division’s opinion in the Brennan case.

 

Major OPRA Opinions On The Horizon

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The State Supreme Court’s current term is almost over, and the Court has not yet issued opinions in several of the OPRA cases that are before it. As discussed here, these cases involve critical issues, such as access to various law enforcement records, the extent of OPRA’s privacy exemption, the ability of public bodies to file declaratory judgment OPRA suits, the application of OPRA to volunteer fire companies, and custodians’ obligations to compile reports from databases.

Based on the Court’s usual scheduling, we will likely see its opinions in these cases in the next several weeks. So in the very near future, there will be major changes in OPRA law.

Supreme Court Seems Ready To Rule That OPRA Requires Custodians To Create New Reports From Computer Databases

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The Supreme Court recently held argument in Paff v. Galloway Twp., concerning whether OPRA permits a request that a public body create a log showing the sender, recipient, date and subject matter of emails of certain Township employees over a specific period of time.

This is a rare case where the outcome can be predicted based on the oral argument. The justices raised no objections to the argument of the requestor’s attorney that this is a valid OPRA request because it simply involves extracting certain information already shown in the emails existing in the Township’s computer system. And the justices were politely contemptuous of the counter-argument that this is an invalid request for the creation of a new record.

Unfortunately, there was hardly any mention during the argument of the consequences of holding that this type of request is permissible. As I’ve explained, see this post, the result will be that OPRA requestors can compel public bodies to produce reports from the information contained in computer databases, with the data organized according to the requestor’s preference. Custodians will effectively be research staffers for requestors, obligated to compile for requestors reports that did not previously exist.