In IMO NJ Firemen’s Ass’n Obligation to Provide Relief Applications Under OPRA, A-2810-13T2, the Appellate Division is considering a novel question– whether a public agency may file a declaratory judgment action asking the court to determine that it properly denied an OPRA request, before the requestor has challenged the denial.

This is an important issue for the New Jersey Press Association, which has filed an amicus brief in the appeal. The NJPA argues that OPRA does not permit agencies to seek declaratory relief concerning OPRA requests, and that allowing such suits would have a chilling effect on requestors.

Despite the NJPA’s arguments, I don’t think that OPRA declaratory judgment suits will adversely affect requestors. These actions simply ask a court to decide the question at the heart of any OPRA dispute–whether public access to a government record is required. It is important to resolve such issues, regardless of whether the court action was brought by a requestor or an agency.

The NJPA’s primary concern appears to be that a requestor who wins a declaratory judgment suit will not receive attorney fees, unlike a successful requestor who has filed an OPRA complaint. However, I doubt the court would so rule, if it determines that an agency may bring a declaratory judgment action. Because it is settled law that attorney fees must be awarded to a requestor who prevails in an OPRA dispute, it is likely the Appellate Division would say that a court must award fees to a prevailing requestor in a declaratory judgment OPRA case, even though the legal action was initiated by the public agency.

The storage of information in electronic databases raises an issue that often comes up under OPRA but has yet to be decided by the appellate courts: must a custodian comply with a request for a report showing certain information contained in an agency database? Put another way, is this type of request–which involves compiling a variety of information from a database– legally invalid because it requires the creation of a new record?

This issue is currently pending before the Appellate Division in Paff v. Galloway Township, A-000125-14T4. New Jersey OPRA Law Reporter previously discussed this case briefly here, focusing on its potential impact on law enforcement agencies. But this appeal affects all agencies, not just the law enforcement community, because the question at the heart of the case concerns the validity of all OPRA requests for compilation of information from any database. The importance of the case is shown by the fact that the League of Municipalities, the New Jersey ACLU and the New Jersey Association of Chiefs of Police have filed amicus briefs with the court.

Galloway has appealed the trial judge’s grant of a request for a log showing the sender, receiver, date, time and subject matter of each email sent by the township’s police chief during a two-week period. The argument that this request is invalid is straightforward–the log must be created by the Township, and case law says that OPRA does not obligate an agency to create a new record. The opposing argument is also straightforward–OPRA requires production of the log because the statute defines a government record as including “information stored or maintained electronically,” and the requested email information is maintained in Galloway’s electronic records.

Neither the Supreme Court nor the Appellate Division has addressed this conflict between OPRA’s language and the rule that OPRA does not require the creation of a record. Resolution of this issue will have a wide impact beyond the specific question in the Paff appeal of access to a log of email information. Many OPRA requests seek reports drawn from electronic databases. This appeal should provide crucial guidance on whether the law requires agencies to produce such reports.

On April 21, 2015, the Appellate Division held oral argument in North Jersey Media Group, Inc. v. Township of Lyndhurst, et al. (“Lyndhurst”). All law enforcement agencies should be aware of this appeal, which concerns the confidentiality of police investigations. The court’s opinion will likely set key precedent on the interpretation of OPRA’s exemption for criminal investigatory records.

The case involves a newspaper’s request for records of a criminal investigation into the fatal shooting by local police of a black suspect during a chase. The newspaper essentially asked for all records connected with the investigation, including police vehicle video and audio recordings, police log entries, incident and investigation reports, as well as “all police reports.” The State Police released some information, as required by OPRA’s ongoing investigation section, N.J.S.A. 47:1A-3b, and also disclosed public records, such as tapes of 9-1-1 calls. It denied access to the rest of the requested records under the criminal investigatory records exemption.

The trial judge, however, held that this exemption did not apply to any of the records. According to the judge, the State had failed to prove that the various police reports made as part of the investigation were not required by law to be made, maintained or kept, and therefore did not fall within the statute’s exemption for criminal investigatory records. As a result, he ordered that all requested records be disclosed.

The Attorney General, on behalf of the State Police, appealed the trial court’s ruling, and obtained from the Appellate Division a stay of the disclosure order pending appeal. The court has proceeded quickly with the appeal, holding argument only three months after the appeal was filed.

I know, from my experience in arguing hundreds of cases before the Appellate Division, that no one can  predict with absolute certainty the outcome of an appeal based on the comments and questions of the judges at oral argument. However, my impression, from watching the argument in this case, is that the judges were uncomfortable with the trial court’s broad determination that the criminal investigatory exemption simply did not apply to any of the records in the investigatory file. The judges’ questioning of the parties’ attorneys appeared to suggest that they agree with the State’s argument that the exemption covers the type of records involved here. I think the judges may issue an opinion stating that the criminal investigatory exemption does apply here, and remanding the matter to the trial court for review of specific records in the file.

In response to a judge’s question about a potential remand, the newspaper’s attorney contended that if there were a remand proceeding, the State should supply his client with an index describing each document. The State’s attorney responded with a cogent explanation of the danger of requiring this approach: it would enable the target of a criminal investigation to obtain a description of the investigatory file concerning him. The judges did not give an indication of how they would rule on this issue.

In my view, the criminal investigatory exemption clearly should have been applied here.  The legislature intended to protect the confidentiality of criminal investigations by precluding public access to the various reports and records created by law enforcement officers in the course of the investigation–precisely the records in question in this case. And this policy in favor of confidentiality would also be undermined by requiring disclosure of a detailed index of all documents held by the investigating agency, which would effectively reveal the direction of an uncompleted investigation.

The significance of this appeal for the law enforcement community cannot be overstated. The court’s opinion will directly affect the operations of law enforcement agencies. If the Appellate Division agrees with the trial court’s analysis, most criminal investigatory records will be subject to release. If the court reverses and hold that the records are confidential, the analysis in the court’s opinion will govern how agencies must respond to OPRA requests for investigative records.