Category Archives: Appellate Division

Precedential Appellate Division Opinion Confirms: Emails about Government Business are Subject to OPRA, Despite Being On A Personal Account

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Since OPRA’s enactment, it’s been understood that communications concerning government business are government records under OPRA, even though they were sent from, or to, the personal devices of government officials. This principle rests on the common sense basis that OPRA would have little meaning if public bodies could avoid its requirements by communicating through personal emails and texts, rather than governmental accounts.

But although the GRC has expressly adopted this principle (Meyers v. Fairlawn) and the Appellate Division has implicitly applied it, in a discovery matter involving public employees, no precedential court opinion had directly addressed this. The Appellate Division did so for the first time, in a recent published opinion, Assn for Govt Ethics etc. v. Boro of Mantoloking. In this case, the court expressly held (citing the above GRC ruling) that an email concerning government business, despite being sent to a municipal prosecutor’s personal account, was covered by OPRA.

The rest of the court’s opinion dealt with several other OPRA issues, but its holdings on these questions are of limited import because of the specific facts of the case, which are unlikely to come up again in future cases. Both the majority and dissenting opinions characterized this matter as presenting “unique” circumstances. I would go further and say the facts of this case are extremely odd.

In preparing for a prosecution, a municipal prosecutor sought counsel from another attorney about how to handle an issue in the case. The attorney sent the advice in an email to the prosecutor’s personal account. The prosecutor later read this email aloud, in court, and gave a printed copy of the email to the defense, but redacted the sender’s name and email address. The OPRA request sought the redacted identity of the attorney who sent the email.

The Appellate Division upheld the confidentiality of the requested information, for a variety of reasons. It analogized the situation to the confidentiality accorded to advisory, consultative and deliberative material; additionally determined that the attorney had a reasonable expectation of privacy in not having their identity disclosed; concluded that the common law did not warrant disclosure; and said that the information was also exempt under the privilege for an attorney’s work product.

In my view, this last point was the key issue in this matter. It’s clear that the email was subject to the work product privilege, as part of the prosecutor’s preparation for litigation. The dispositive question is whether the prosecutor waived this privilege by disclosing the email’s contents during the court proceeding. The majority opinion concluded the privilege had not been waived as to the identity of the sender of the email, while the dissent determined that the prosecutor did waive the privilege by her actions in court.

I suspect that when the Supreme Court decides this case–which is highly likely, since an appellate opinion with a dissent is appealable to the Supreme Court as of right–the Court will focus primarily on the work product privilege waiver issue. Hopefully, the Supreme Court’s opinion will also provide clear guidance concerning the application of OPRA to governmental communications sent to personal devices.

A Significant Court Ruling: A Prolific OPRA Requestor is Not Allowed to Make OPRA Requests

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Over the past several years, an organization named the African American Data and Research Institute (AADARI) has been a frequent OPRA requestor and litigant. I don’t know how many requests AARDI has made, but it often files challenges to OPRA denials in the GRC and the courts. About half of the cases decided by the GRC in recent have listed as the complainant, “Rotimi Owoh, Esq. (o/b/o African American Data & Research Institute).” And the AADARI, always represented by Mr. Owoh, has litigated a number of Appellate Division and Supreme Court OPRA cases.

However, the Appellate Division recently held that the AADARI does not have the legal capacity to make OPRA requests or to authorize an attorney to act on its behalf, either to make OPRA requests or to file litigation. AADARI v. Hitchner, et al.

This case involved various OPRA and common law requests made by Attorney Owoh on behalf of AADARI. However, the record before the Appellate Division showed that AADARI is a corporation whose sole member is Owoh’s son, O.S., who suffers from a mental illness and is mentally incompetent. The court concluded the corporation did not have the legal ability to take any of the actions involved in the OPRA matters. The corporation can only take actions through its members, but AADARI’s only member, O.S., is not able to do so because of mental incompetence; according to the court, he “does not possess the capacity to retain Owoh, request the records, or decide to file suit.”

For the same reason, the court said, the corporation lacks the legal ability to file an OPRA court action. The entity cannot satisfy the court rule that its action be supported by the required verified complaint –no one in the corporation could attest to the truth of the claims. As a result, the Appellate Division dismissed the complaints.

It’s not clear what effect this ruling will have on future OPRA litigation. The AADARI could, of course, reorganize with new members to remedy the problem discussed above. But for now, this frequent requestor is precluded from making OPRA requests or litigating over prior denials of its purported requests.

Appellate Division Issues Useful Opinion on OPRA’s Exemption for Investigations in Progress

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The Appellate Division’s recent unpublished opinion in Benigno v. Office of the State Comptroller doesn’t break any new ground, but it contains helpful reminders of the legal standards that govern some common OPRA issues.

The requestor sought records concerning an investigation by the Office of the State Comptroller (OSC) into the training provided by the requestor’s company, “Street Cop Training,” to various police departments. (It’s not relevant to the OPRA issues, but here’s an article discussing the OSC’s report alleging the company conducted problematic training sessions).

The court upheld the denial of the request on various grounds. The records were confidential under OPRA’s exemption for an “investigation in progess.” The Appellate Division discussed how the records met all the criteria for this exemption: at the time of the request, the OSC was engaged in an investigation; the requested records were created as part of this investigation; and it would be “inimical to the public interest” to reveal the OSC’s “investigative playbook” to the party being investigated.

The court also held that the request was invalid as an overbroad request for information. The request consisted of demands for “all” documents, correspondence, etc. related to the investigation. As I’ve noted before, requestors keep making this type of improper request, even though the case law has consistently said that OPRA does not allow this.

Finally, the Appellate Division rejected the requestor’s effort to obtain the records under the common law, concluding that the need for confidentiality of the investigation far outweighed any interest in disclosure.

Once Again, Appellate Division Rules That A Request Requiring Research Is Invalid

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It’s a bedrock OPRA principle, stated consistently by the courts, that a request must be for a specific record, and cannot require the custodian to conduct research to fulfill the request. For this reason, the Appellate Division recently upheld the denial of a request that sought the “real reason” for the separations of various police officers from employment. Owoh v. Maple Shade Police Department.

The request asked the police department for personnel information that’s not exempt from disclosure under OPRA–the “[n]ames, date of hire, date of separation and reason for separation and salary of
individuals who…[were separated] in the last [five] years from [the] police department.” The department provided the requested information. For the reasons for separation, it properly indicated whether the officer resigned, retired or was terminated.

The requestor objected that this did not show the “real reason” for separation, which might be due to a plea agreement or a conviction. The court rejected this argument, concluding that the department complied with OPRA by giving the requestor the reasons for the officers’ separations.

Regarding the requestor’s interest in finding the so-called “real reasons” for officers’ separations from employment, the court indicated that the custodian was not obligated to try to figure out what records might contain such information. The court emphasized that the request did not identify any specific records that have the “real reasons,” and the custodian was not required to conduct research and analyze the agency’s records to attempt to find this information.

A Reminder from the Appellate Division: When Internal Affairs Reports are Requested, Make a Complete Analysis of the Factors of the Common Law Balancing Test

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In its 2022 opinion in Rivera v. Union County Prosecutor’s Office, the Supreme Court held that police internal affairs (IA) records are exempt under OPRA, but may be disclosable under the common law right to know. A common law records request requires the public body to conduct a balancing test, which evaluates whether the public interest in disclosure outweighs the need for confidentiality of the record.

The Appellate Division recently issued an unpublished opinion reversing the denial of a common law request for IA reports, because the trial judge had failed to conduct a complete analysis of the factors of the balancing test. 21st Century Media v. Ewing Twp.

In Rivera, the Supreme Court directed that in conducting the balancing test with regard to a request for IA records, courts and record custodians must consider certain factors: those that apply to all common law record requests (referred to as the “Loigman” factors), as well as other factors that relate specifically to IA reports. The additional considerations for IA records, identified by the Rivera Court, are:

-the nature and seriousness of the misconduct, and whether it was substantiated;

-the nature of the discipline imposed on the official;

-the nature of the official’s position, and

-the official’s record of misconduct.

In 21st Century Media, neither the town nor the trial judge referred to these criteria in denying the request for disclosure of IA reports concerning certain indicted police officers. The town’s denial letter said only that the public interest in disclosure “does not outweigh the rights of [the officers] to a fair and impartial trial, and the presumption of innocence….” The judge’s ruling that the records should not be released did not mention this rationale, and instead was based on the conclusion that there was no showing the officers had engaged in repeated misconduct.

The Appellate Division reversed, because the judge had not evaluated the common law balancing test factors. The Appellate Division remanded the case to the trial judge, ordering the judge to review the IA reports in camera and apply the Rivera and Loigman factors to determine whether the IA reports should be released.

This opinion shows that a denial of a common law request for IA reports (or any other type of government record) will not be upheld if the public body fails to demonstrate that it took the various balancing test factors into account. And although 21st Century Media is an unpublished opinion, it is clearly consistent with precedential case law. In fact, the Supreme Court in 2023 expressly cautioned that record custodians must “carefully review each [common law] request and provide a response that comports with the law.” Gannett Satellite Network v. Neptune Tp.

Appellate Division: Police Body Cam Video Revealing Criminal Allegations against an Individual who was not Charged With A Crime Is Not Disclosable Under OPRA and the Common Law

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The Appellate Division, in a recent published opinion, addressed an issue of first impression: whether the exemptions from disclosure of a police officer’s body worn camera (BWC) footage, which are set forth in the statute governing such cameras, abrogate other disclosure exemptions found in OPRA. The court determined that although the BWC statute provides for withholding BWC videos under certain circumstances, OPRA’s exemptions also continue to apply to such videos.

Specifically, the court held that the custodian had properly withheld disclosure of a BWC video under OPRA’s exemption for confidentiality recognized by case law–here, the confidentiality accorded to law enforcement records concerning a person who has not been arrested or charged with a crime. Fuster v. Tp. of Chatham.

Fuster went to the police with allegations that a relative had engaged in criminal sexual misconduct. Fuster was interviewed about his allegations at the police station, and the interview was recorded by an officer using a BWC. The police and other agencies investigated further and eventually decided not to file charges against the relative.

Fuster subsequently filed with the police department an OPRA and common law request for the BWC video. It was not disputed that the video fell under OPRA’s exemption for the recognition by case law of the need for maintaining the confidentiality of investigative records regarding a person who has not been arrested or charged. Instead, the requestor argued that the OPRA exemption could not be applied, on the ground that the Legislature abrogated this exemption in the BWC statute, enacted in 2021.

The requestor’s claim rested on the fact that the BWC statute provides for a few specific situations where a BWC video may be withheld from public disclosure (none of which applied to the video in this case). Based on this, the requestor reasoned that the Legislature intended to rescind all other OPRA exemptions with regard to BWC videos.

The court rejected this argument; it concluded that the legislative purpose of the BWC statute was not to override OPRA, but rather to add some exemptions to OPRA’s existing exemptions. The court saw no basis for concluding that the BWC statute meant to abolish OPRA’s requirement that a record that would disclose the identity of a person who was never arrested or charged with a crime must be kept confidential.

The court also held that under the common law, the requestor’s interest in disclosure of the video did not outweigh the strong privacy and investigatory interests that support confidentiality of the record in question here.

New Appellate Division Opinion Addresses An Important Issue Regarding the Statute of Limitations for OPRA Actions

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In Dalnoky v. Pinelands Reg. School Dist., the court dealt with an OPRA issue of first impression: whether a requestor may refile his OPRA request, after the custodian denied the request and the requestor did not file a court complaint challenging this denial within the 45-day statute of limitations. The Appellate Division concluded that a requestor may not avoid the statute of limitations by filing the same OPRA request at a later date.

In this case, the custodian denied the OPRA request on October 23, 2020. The requestor subsequently filed the same OPRA request several other times during 2021 and 2022. He filed a lawsuit against the school district on December 6, 2021, which raised several claims, including a challenge to the denial of his OPRA requests.

The Appellate Division upheld the dismissal of the OPRA claim, for failure to file it with the trial court until well beyond the 45-day statute of limitations applicable to OPRA matters: the custodian denied the request in October 2020, and the complaint was filed in December 2021.

The requestor argued that the complaint was timely because it concerned the OPRA request he had made to the district in November 2021. But the court determined that this request was the same as the one that the district had denied in October 2020, which the requestor had not timely challenged. The court observed that it would “frustrate the purpose” of OPRA’s statute of limitations to “allow plaintiff to start a new forty-five-day period by simply making an identical request….”

I think the court’s determination is inarguably correct; indeed, there would effectively be no statute of limitations for OPRA complaints if appellant’s argument were accepted. However, there’s at least one trial court ruling that reached the opposite conclusion.

It’s unfortunate the Appellate Division’s opinion in Dalnoky is not precedential, to preclude other requestors from refiling their requests in an effort to avoid compliance with the statute of limitations for OPRA complaints.

A Rare Court Opinion On OPRA’s Security Exemption

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In 2016, the Supreme Court, in Gilleran v. Bloomfield Tp., for the first time addressed OPRA’s exemption for security information which, if disclosed, would jeopardize security of a building or create a risk to a person’s safety. The Court held that the exemption applies to footage from a building’s surveillance camera. Since this Supreme Court opinion, there has been almost no case law dealing with this security exemption, except for a single, unpublished 2018 Appellate Division opinion that determined the exemption covers computer security information.

The Appellate Division recently issued another unpublished opinion concerning the security exemption. Zezza v. Evesham Tp. Bd. of Ed. Although this opinion is not precedential, and breaks no new legal ground, it’s still worth noting, in view of the lack of case law in this area of OPRA.

The court held that the Board incorrectly denied an OPRA request for 35 seconds of footage from surveillance cameras on the grounds of a school, because it had made no showing that release of the video would compromise security. The Board did not submit any certifications describing security concerns, and in addition, the trial judge concluded that disclosing such a small amount of video footage would not expose any “surveillance weaknesses.”

The Appellate Division correctly determined that under these circumstances, there’s no basis to apply the security exemption. It noted that in Gilleran, the Supreme Court expressly said that to rely on this exemption, “the governmental entity must establish that the security tool (here, the camera) produces information that, if disclosed, would create a risk to the security of the building or the persons therein because of the revealing nature of the product of that tool.”

Appellate Division: No OPRA Violation Where Custodian Was Temporarily Unable To Search For Records Due To Covid Shutdown

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In an unpublished opinion, the Appellate Division determined that a public body acted appropriately, and did not violate OPRA’s response deadline, where it told the requestor it would search for the requested records after the end of a Covid shutdown. C.E. v. Elizabeth Public School Dist. This is the first appellate opinion to deal with the effect of pandemic closures on the handling of an OPRA request.

The OPRA request was submitted to the School District in May 2020, when all District schools and offices were closed indefinitely due to Covid. As a result, the District advised the requestor, “we will respond to your request for records when circumstances allowing for the reopening of the District and access to records permit.” It explained that the search of the records sought could only be done on the premises. The District eventually provided the requested records in March 2021, shortly after being able to return to the office.

The appeal concerned the requestor’s claim for attorney fees, based on the catalyst theory–that its litigation, which it had filed in the Law Division in 2020, caused the release of records in 2021. The Appellate Division rejected this argument because the District had not refused to disclose any records; instead, its answer to the OPRA request was that it would produce responsive records when able to do so. The requestor’s litigation, said the court, did not cause the District to release the records.

The requestor attempted to avoid this conclusion by arguing that the District’s initial response should be deemed a denial of the request, because the District did not fulfill the request within OPRA’s 7-business day deadline. The court found this argument to be flawed, because the Legislature suspended this OPRA response deadline during the Covid emergency. Instead of requiring the custodian to respond within a specific time frame, the statute stated that a custodian must make a reasonable effort under the circumstances to respond. The Court concluded here that the District did make a reasonable effort, given the impact of the Covid-related closure on its ability to search for responsive records.

Two Recent Appellate Division Opinions Consider Whether OPRA Requires Disclosure of Personal Email Addresses

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It’s not clear whether OPRA requires a public body to disclose a personal email address that it has in its possession. While there’s a good argument that OPRA’s privacy section protects individuals’ email addresses, as recognized by the GRC and some unpublished court opinions, there is no definitive, precedential ruling on this issue.

The Appellate Division recently addressed this question, but did so in two unpublished, non-precedential opinions that reached different conclusions due to the different circumstances presented in each. Although these opinions are fact-specific, they are instructive for how custodians should deal with a request for personal email addresses.

In Brooks v. Twp. of Tabernacle, the Appellate Division determined that the email addresses had to be released. The OPRA request sought the names and email addresses of those who had emailed with certain Township officials and employees. The court stated that OPRA’s privacy section does apply to a personal email address, because a person has a colorable claim that disclosure of this information would invade their objectively reasonable expectation of privacy. But although the claim is colorable, the court applied the required balancing test and concluded that the privacy interest of the individuals here was mimimal, and was outweighed by considerations favoring disclosure of the requested email addresses.

In reaching this conclusion, the court placed substantial emphasis on the fact that the government had the addresses due to the decision of these members of the public to engage in email exchanges with public officials and employees about public business. The court said such discussion is “an inherently public activity,” making it unreasonable for anyone to “believe they have a right to cloak their contacts relating to public business in secrecy.”

In contrast, in Rise Against Hate v. Cherry Hill, decided by the same panel of judges on the same day, the email addresses held by the government did not result from email exchanges about public business. Instead, residents had given the municipalities their email addresses for the purpose of receiving newsletters and notices from the municipalities. Applying the same legal analysis as it did in Brooks, the court this time concluded OPRA’s privacy protection required withholding the addresses from disclosure.

The key to the ruling in this case was that the residents provided their email information to the municipalities for receipt of “periodic, generic newsletters and notices,” rather than engaging in email dialogue with public officials about public business. This tipped the balance of interests in favor of privacy.

These opinions are not precedential for future OPRA requests for email addresses. However, it’s significant that the court saw OPRA requests for email addresses as presenting a colorable claim of invasion of privacy, confirming that custodians should assess such requests under the fact-specific balancing test.