According to this article, Teaneck is appealing a trial court ruling that it violated OPRA in seeking to enjoin a requestor who had overwhelmed the township with excessive OPRA requests.

In a previous post on this case, I said that in my view, the trial court erred. The Supreme Court ruled 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 Teaneck case, which involved an avalanche of burdensome OPRA requests made for the purpose of harassing township officials, seems to be the exact type of situation the Supreme Court had in mind.

Hopefully, the Appellate Division will issue an opinion in this matter that will confirm that it’s entirely appropriate for public bodies to seek injunctions in cases like this.

Fall isn’t just when school and the NFL season begin; it’s also when the New Jersey Appellate Division and Supreme Court become more active. I anticipate that the Appellate Division will issue opinions in several important OPRA cases in the next few months. There are many other significant OPRA cases on appeal, but the ones listed below have been pending for a while and are most likely to be decided by the court in the near future.

-Paff v. Galloway Tp.

The issue in this appeal is whether the township must create and disclose a log listing all emails sent by the police chief during a 2-week period. As explained here, the key legal question presented is one that often comes up: is a custodian obligated under OPRA to create a new document from information contained in an agency’s database? The Township appealed and several organizations have joined the case as amici, including the League of Municipalities, the NJ Association of Chiefs of Police and the NJ ACLU.

-Gannett v. Borough of Raritan

This appeal involves several issues concerning access to records in electronic format and the amount a public entity may charge the requestor for converting the records to that format. The case is especially notable because the court is also reviewing the reasonableness of the $600,000 attorney fee award granted to the plaintiff for prevailing. This is far and away the largest attorney fee award under OPRA.

-IMO NJ Firemen’s Assn Obligation to Provide Relief Applications Under OPRA

This appeal presents a novel question: whether a public body may file a declaratory judgment action asking the court to determine that it may deny an OPRA request, before the requestor has challenged the denial.

-Paff v. Bergen County

The issue in this appeal is whether the names of officers and complainants shown in police department internal affairs complaints  must be disclosed.

This post discussed journalists’ objections to a new FOIA policy, in terms of the objections’ relevance to an appeal pending in New Jersey, where the court will decide whether OPRA requests are confidential. The FOIA protocol is that when a federal agency grants a FOIA request from the media and other organizations, it will also post the documents online, so that the public can see what was produced.

This  recent Huffington Post article goes into more detail about journalists’ criticisms, which boil down to the concern that revealing what they requested will harm media investigations of government. Although the article quotes various open government activists who support the policy, it’s notable that reporters, including those at the New York Times and the Washington Post, want some degree of confidentiality applied to their records requests to protect their ability to conduct investigations into government activities without alerting other journalists.

This exact concern was cited by the Appellate Division, in the Gannett opinion, for why OPRA requests should be confidential. The court’s example was that if another news organization were conducting an investigation into an agency’s financial practices, it would not want Gannett to be able to have that agency disclose all records that had been provided to Gannett’s competitor.

As indicated in Gannett, as well as in many other New Jersey judicial opinions, under OPRA, access to government records sometimes must give way to third parties’ interests in privacy and competitive advantage. The journalists’ objections to the FOIA policy confirm that these exceptions may well apply to requests to see others’ OPRA requests.

In an exquisite irony, journalists are objecting to a new federal FOIA policy that provides the public with greater access to government records.

The federal government recently implemented a new procedure: when an agency grants a FOIA request from the media, a corporation or a nonprofit organization, it will also post the documents online, so that the public can see what was produced. Even though this results in more liberal public access to government records, some journalists oppose this practice.

As explained in this media blog post, reporters say the policy penalizes the journalists who put in the work of making the FOIA request, by precluding their ability to report exclusively on the documents obtained. The Washington Post’s investigations editor also notes that it may affect investigations built on a number of FOIA requests over time.

What does this controversy have to do with OPRA? The objections raised by the media support the argument made by the State in a pending appeal, Scheeler v. Governor’s Office, which involves the question of whether OPRA mandates disclosure of the OPRA requests received by an agency. The State’s position is that OPRA requests are confidential, as recognized by the Appellate Division in a 2005 opinion. The appellate court noted that disclosure would penalize reporters who make OPRA requests, based on the type of rationales stated by those opposing the FOIA policy.

The journalists’ objections to the new FOIA policy show that the concerns expressed in the 2005 Appellate Division opinion are not hypothetical, and should considered in the current appeal.

The following is a list of currently pending appeals that present significant OPRA issues.

-North Jersey Media Group v. Lyndhurst

As discussed here, a few weeks ago the Appellate Division issued a landmark opinion upholding the confidentiality of criminal investigatory records. The requestor, North Jersey Media Group (The Record), announced that it would appeal to the Supreme Court.

-Gannett v. Borough of Raritan

This appeal involves several issues concerning access to records in electronic format and the amount a public entity may charge the requestor for converting the records to that format. The case is especially notable because the court is also reviewing the reasonableness of the $600,000 attorney fee award granted to the plaintiff for prevailing. This is far and away the largest attorney fee award under OPRA.

-IMO NJ Firemen’s Assn Obligation to Provide Relief Applications Under OPRA

This appeal presents a novel question: whether a public body may file a declaratory judgment action asking the court to determine that it may deny an OPRA request, before the requestor has challenged the denial. The court heard oral argument a few weeks ago, so it is possible its opinion will be issued soon.

-Paff v. Bergen County

The issue in this appeal is whether the names of officers and complainants shown in police department internal affairs complaints  must be disclosed.

-Paff v. Galloway Tp.

The issue in this appeal is whether the township must create and disclose a log listing all emails sent by the police chief during a 2-week period. As explained here, the key legal question presented is one that often comes up: is a custodian obligated under OPRA to create a new document from information contained in an agency’s database? The Township appealed and several organizations have joined the case as amici, including the League of Municipalities, the NJ Association of Chiefs of Police and the NJ ACLU.

-North Jersey Media Group v. Office of the Governor

In this appeal, the court is asked to determine whether judges have the authority to impose fines upon individuals who violate OPRA.

A recently-filed appeal raises an issue that has been under the radar, but is of critical importance to public agencies–whether trial court judges have the legal authority to impose OPRA’s financial penalties.

OPRA requires imposition of a civil penalty, ranging from $1000 to $5000, upon any public official or employee who knowingly and willfully violates the statute. The GRC has fined custodians under this provision, see this example of a $2500 penalty, but there is no clear case law on whether trial court judges also have the power to impose the statutory penalty.

North Jersey Media Group recently filed an appeal which presents this issue. The case concerns a reporter’s December 2013 OPRA request to the Governor’s Office for correspondence related to the now-infamous George Washington Bridge lane closures. The trial judge ruled that the Governor’s Office violated OPRA in responding to the request. North Jersey’s appeal argues that members of the Governor’s Office should have been subject to penalties for their handling of the request. The threshold question in the appeal therefore is whether a trial judge has the legal authority to impose OPRA’s penalties.

There is no precedential court opinion addressing this issue. In an unpublished 2008 opinion, the Appellate Division said that the statute provides that only the GRC, and not the trial court, has authority to impose penalties. I think the Appellate Division was correct, but of course a future court may disagree and decline to follow this non-binding opinion.

A ruling that trial courts may impose penalties would dramatically increase the risks and costs of agencies’ OPRA litigation. A penalty claim would require a judge to conduct a proceeding to determine whether any of the employees involved in the OPRA response committed the violation knowingly and willfully. This inquiry may well require discovery and an evidentiary hearing. As a result, many OPRA cases would turn into lengthy and expensive litigation.

In addition, giving judges the power to impose penalties would adversely affect the ability of agencies to settle OPRA actions favorably. Requestors would be able to use the prospect of costly and time-consuming penalty litigation, plus the risk of an increased attorney fee award as a result of this litigation, as added leverage in settlement negotiations with the agency.

The Appellate Division will probably issue its opinion in the North Jersey appeal some time late next year.

This blog has previously discussed an important pending appeal, Paff v. Galloway Tp., which asks whether OPRA requires the custodian to create a new document from information contained in an agency’s database. This problematic issue has recently come up in a trial court case involving records of the Governor’s Office, Lagerkvist v. Office of the Governor.

A different claim in this case, involving the demand for disclosure of travel expenses of the State Police troopers who protect the Governor, has received substantial attention. This aspect of the case has overshadowed the fact that the requestor also seeks disclosure of the Governor’s Office’s “GovNews” database, which would show the recipients of emails from the Governor’s Office containing press releases and other media communications.

The Governor’s Office provided the requestor with a copy of the GovNews email “blast” that was sent on January 26, 2015, but Judge Mary Jacobson ordered that the requestor be given the email addresses of the recipients of this email blast. The judge also ordered disclosure of the entire contact database.

The Attorney General’s Office recently filed a motion asking that Judge Jacobson reconsider her order. Although the motion primarily argues that the contact database is exempt from disclosure,  the brief also states that producing the email addresses specifically related to the January 26 blast would improperly require the creation of a new record, because the email software of the Governor’s Office cannot print those addresses.

In the Paff appeal, the Township argues that OPRA does not require it to create a log from its database of emails, showing the sender, receiver, date, time and subject matter of each email sent by the Township’s police chief during a two-week period. Similarly, in Lagerkvist the argument is that the statute does not require the Governor’s Office to create a log of recipients of the email blast from its email database.

As shown by the Lagerkvist case, as well as the fact that many groups have filed amicus briefs in the Paff appeal (including the N.J. ACLU and the N.J. League of Municipalities), it is critical that the Appellate Division resolve the question of whether OPRA mandates the creation of records from databases.