Category Archives: Supreme Court cases

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.

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).

 

Supreme Court To Decide Two OPRA Law Enforcement Records Cases

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The Supreme Court has issued several OPRA opinions, but it has never dealt with OPRA’s provisions governing law enforcement records. But now the Court has decided to review two cases involving such records.

The Court announced yesterday that it will review the Lyndhurst case, concerning the scope of OPRA’s exemption for criminal investigatory records. This comes only a few weeks after the Court agreed to hear Gilleran v. Township of Bloomfield, which involves interpretation of OPRA’s exemptions for records related to safety and security.

The importance of these cases can’t be overstated–they affect virtually every law enforcement record, and as a result, will have a substantial impact on law enforcement operations.

I think it’s highly likely that the Court will rule in favor of the public agencies in both cases. Unlike many cases reviewed by the Supreme Court, these matters don’t present a difficult call for the justices, and in fact involve fairly weak arguments by the requestors.

The requestor’s position in Lyndhurst is not supported by either law or logic; it essentially argues that OPRA’s criminal investigatory exemption does not apply to most of the records in a law enforcement agency’s investigatory file. While the Court may determine that some of these records may be subject to release (perhaps under a common law theory), I think the Court will uphold the longstanding rule in New Jersey that provides confidentiality to most of the contents of a criminal investigatory file.

Similarly, in Gilleran, I predict that the Court will rule that OPRA’s safety and security requirements prohibit unfettered public access to building surveillance camera videos. The recent terrorist attacks are reminders of why the legislative intent is to preclude disclosure of this type of security-related material held by public agencies.

Since the Court only recently granted review, opinions in these cases will probably not be issued until at least a year from now.

Gilleran–The First Time The Supreme Court Will Consider OPRA’s Law Enforcement Records Provisions

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The Supreme Court recently announced that it will review the Township’s appeal in Gilleran v. Tp. of Bloomfield, in order to decide whether building security camera footage is confidential under OPRA. This case is hugely significant: for the first time, the Court will consider law enforcement interests under OPRA.

To resolve the Gilleran case, the Court must interpret and apply OPRA’s exemptions for records related to public safety and security, including (1) building emergency or security information, the disclosure of which would jeopardize the security of the building or persons, and (2) security measures and surveillance techniques, the disclosure of which would create a risk to the safety of people and property. In addition, the Court will have to take into account the various other statutes, regulations, executive orders and court opinions which implement the policy that OPRA requires confidentiality whenever the disclosure of any type of record would pose a safety risk.

The Court’s decision here will establish the scope of OPRA’s security provisions, and as such, will have a major impact on law enforcement in New Jersey. A wide range of records, not just building security camera recordings, will be affected, such as State Police and gubernatorial travel records, school safety drill information, and many types of reports generated by police departments, prisons and other law enforcement agencies.

It’s crucial that the Attorney General and other law enforcement experts file amici curiae briefs in this case, to provide the Court with insight into the law enforcement interests that are at stake here.

Supreme Court To Review Whether OPRA Requires Disclosure Of Building Security Camera Videos

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On Friday November 6, the Supreme Court announced that it has granted review of the Appellate Division’s decision in Gilleran v. Township of Bloomfield, in which the appellate court ordered Bloomfield to release videos taken by building security cameras. This will be the first time the Supreme Court will address OPRA’s exemptions for safety and security.

According to the office of the Supreme Court Clerk, the issue on appeal is: “Does the Open Public Records Act require the Township to disclose video recordings from a security camera surveilling the back of the Township’s municipal building (i.e., Town Hall)?”

As discussed here, in its opinion the Appellate Division recognized that there is a strong security interest in maintaining the confidentiality of this kind of video in general, but held that Bloomfield had not presented specific enough evidence of the security risk in this case. I suspect the Supreme Court’s decision to review this holding is based, in part, on the understanding that the supposed lack of specific evidence is beside the point–presumably, the security risk posed by granting release of such recordings does not significantly vary across the state.

The Supreme Court’s decision to take this case has far-reaching implications. Resolution of the specific question of access to building security camera recordings will have wide impact, as many public buildings throughout New Jersey have such cameras. And of even greater importance is the fact that the Court, for the first time, will interpret the legal standards governing OPRA’s exemptions for records affecting security. This will affect future public access to a variety of records, not just building cameras.