Category Archives: Privacy

Supreme Court to Review Daniel’s Law Case

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The Supreme Court recently granted review of a case presenting a claim by a reporter that Daniel’s Law unconstitutionally prohibited him from publishing news stories that included the home address of an official covered by this law. Kratovil v. City of New Brunswick.

I’m surprised the Supreme Court decided to review this case, which does not present broad issues of the overall constitutionality of the law’s prohibition against disclosing the home addresses of judges, prosecutors, and law enforcement personnel. Instead, the appeal involves the narrow question of the validity of applying Daniel’s Law to this reporter, under the specific factual circumstances of this case. The Court itself described the question before it us whether Daniel’s Law is “unconstitutional as applied to plaintiff [the reporter]?”

The Appellate Division opinion highlights the limited nature of this matter. In affirming the trial court, it stated:

The trial court, however, did not tell plaintiff what he could or could not
publish….The trial court stated that the publication of the town where Caputo [New Brunswick Police Director] lived was a matter of public concern, but Caputo’s specific street address was
not. The trial court did not, however, enjoin or restrain plaintiff from publishing
a story about where Caputo lived while he was a City official.

In other words, this case does not raise a challenge to the core requirement of Daniel’s Law, which prohibits disclosure of certain officials’ home addresses. And this means that the Court’s opinion in this matter is unlikely to affect OPRA, which now mandates redaction of home addresses in responding to requests.

Don’t Overlook These Beneficial Changes Made In The OPRA Reform Law

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The provisions of the recent OPRA amendments that have gotten the most attention are new sections dealing with attorney fee awards, commercial requests, and authorization of suits against requestors who seek to interfere with government operations. These are important, but today I want to focus on other significant revisions that have been somewhat under the radar.

Over the years, OPRA’s unclear language, or in some cases, the absence of language, caused several problems in implementing the statute. The new law addresses many of these issues. Here are a few examples of these beneficial changes:

-Since OPRA’s original enactment, it’s been unclear whether the statute’s privacy provision required custodians to redact individuals’ personal information, particularly home addresses and personal email addresses, from government records. This ambiguity led to much litigation over the years, and as I’ve often noted, the case law has not resulted in much clarity. The new law resolves this problem by expressly stating when address information must be kept confidential. And the statute specifically overturns the Supreme Court’s untenable interpretation of the privacy section in the Bozzi case, where the Court determined pet owners have no expectation of privacy when they apply for a pet license, and therefore their home addresses must be disclosed.

-Custodians constantly struggle with responding to overly broad requests that don’t identify specific records, and instead require custodians to conduct research to satisfy the request. Although the courts have consistently stated that such a request is invalid, requestors keep making this type of request. The amended statute now expressly says that requests involving research are invalid, and more specifically defines what’s needed for a request to be valid.

-One of the most problematic aspects of the courts’ interpretation of OPRA has been that a person who is litigating against an agency, with the opportunity to obtain agency records through discovery, is allowed to separately submit an OPRA request with that agency, seeking the same records. The new law expressly precludes litigants from doing this.

-Unlike all other state agencies (and the courts), the GRC does not have a deadline for a requestor to file a complaint with the GRC, giving a requestor an unlimited amount of time to challenge a custodian’s OPRA request. The statute resolves this absurd situation, imposing a 45-day period for filing GRC complaints.

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.

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.

Supreme Court to Review Whether OPRA Requires Disclosure of Residents’ Email Addresses

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The Supreme Court recently granted review of a consequential OPRA issue: the applicability of OPRA’s privacy provision to residents’ personal email addresses. Since OPRA’s enactment, municipalities have been frustrated by the absence of precedential case law governing requests for residents’ email addresses. The Supreme Court will now remedy this situation, in Rise Against Hate v. Cherry Hill.

Specifically, the question in the case, according to the Court’s website, is:

“Are email addresses submitted by members of the public to a public agency to sign up for electronic newsletters and notices subject to disclosure under the Open Public Records Act?”

In this case, the Appellate Division held that OPRA’s privacy section prohibited disclosure of the email addresses. As I explained here, the Appellate Division determined that people have an expectation of privacy in their email addresses, and these privacy interests outweighed the requestor’s interest in disclosure, where residents provided their email information to the municipalities for receipt of “periodic, generic newsletters and notices.”

Although this case only involves email addresses that were submitted for receipt of newsletters and notices from municipalities, presumably the Supreme Court’s analysis will also provide guidance on how to handle an OPRA request for a personal email address that a public body has received, for any other reason.

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.

A Pending Appellate Division Case Presents Two Important OPRA Issues

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Several municipalities are in litigation with the organization Rise Against Hate over requests for residents’ email addresses. One of these cases, involving Cherry Hill, is pending in the Appellate Division. Cherry Hill appealed the trial court’s ruling that OPRA’s privacy section does not protect email addresses from disclosure.

There is no precedential case law on whether email addresses must be disclosed under OPRA. I think there’s a strong argument that people have a reasonable expectation of privacy in their email addresses, and therefore this information should typically not be obtainable through an OPRA request. However, I’m not confident the court will agree with this position, in view of the extremely limited effect the Supreme Court and the Appellate Division have given to OPRA’s privacy provision in recent cases.

The Cherry Hill appeal presents another important issue, which I’ve never seen raised before: whether a requestor is permitted to refile its OPRA request, after the custodian denied the request and the requestor did not file a court challenge to the denial within the 45-day statute of limitations. The trial judge concluded that a requestor may submit the same request again, despite the failure to meet the statute of limitations, on the ground that OPRA does not prohibit requestors from refiling their requests.

This determination is plainly incorrect. It misses the point that the Supreme Court expressly held that OPRA has a 45-day statute of limitations for requestors who want to challenge a denial in the Law Division. Mason v. City of Hoboken. The trial court’s decision makes the Supreme Court’s decision meaningless, by allowing requestors who fail to meet the complaint filing deadline to simply file the same request again. The result is that there is no statute of limitations–precisely the opposite of what the Supreme Court mandated.

Supreme Court: OPRA Requires Disclosure of Names and Addresses from Dog License Records

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The Supreme Court today issued an opinion settling a problematic question that has come up countless times since the enactment of OPRA: whether OPRA requires disclosure of the names and home addresses of individuals who provide this information to the government when applying for a dog license. In Bozzi v. Jersey City, the Court held that this personal information must be disclosed to an OPRA requestor.

The legal issue before the Court was whether OPRA’s privacy provision protects dog owners from having their names and addresses made available to the public. The Court said the privacy section does not apply, because there is no “colorable claim that the disclosure of the requested dog license records would invade a dog owner’s reasonable expectation of privacy.” According to the Court, “owning a dog is, inherently, a public endeavor,” and therefore an owner cannot expect privacy with regard to the name and address information submitted for purposes of obtaining a dog license.

The Court did say that other information contained in dog license records should be withheld, based on security concerns: breed information, the purpose of the dog (companion, service dog, or law enforcement), and the name of the dog. The last exclusion is based on the Court’s recognition that many people use the names of their pets as passwords or answers to security questions.

In a separate post, I’ll discuss my view of the Court’s reasoning, as well as the implications of the Bozzi opinion for future OPRA matters.

2020 Case Law Review–A Year of Major OPRA Court Cases

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Despite the pandemic, the courts issued a surprisingly large number of significant OPRA opinions during 2020. Here is a quick review of these rulings.

There were two cases involving the critical question of public access to police internal affairs records. The Supreme Court ruled that these records are not accessible under OPRA. FOP v. City of Newark. However, in the summer of 2020 the Attorney General created an exception to this rule, adopting a policy that requires law enforcement agencies to disclose the identities of disciplined officers. See this post for a summary of the precedential Appellate Division opinion (now under review by the Supreme Court) upholding the policy’s validity.

The Supreme Court also granted review of two other 2020 Appellate Division that dealt with important OPRA issues: Bozzi v. Roselle Park and Simmons v. Mercado. In Bozzi, the court determined that OPRA’s privacy provision does not protect against the disclosure of home addresses that people have provided to the government. In Simmons, the court said, in a matter of first impression, that when an agency has access to another agency’s database, it is not the custodian of that system, and therefore cannot be required to answer OPRA requests for information contained in the database.

And there were three more precedential Appellate Division OPRA opinions:

–IMO Application for Med. Marijuana ATC for Pangaea, etc. –a public body may withhold disclosure of the names of the individuals who reviewed applications that were submitted to the public body in a competitive process.

–Libertarians for Transparent Govt. v. Cumberland County–a settlement agreement between a public body and its employee, which resolves an internal disciplinary action against that employee, is exempt from disclosure as a personnel record.

–Digital First Media v. Ewing Tp.–a Use of Force Report involving a juvenile must be disclosed under OPRA, with redactions to protect the juvenile’s identity.

Supreme Court to Review Whether OPRA Requires Disclosure of Home Addresses

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The Supreme Court recently granted review of a case to decide a longstanding, unsettled OPRA issue: whether OPRA’s privacy provision protects against the disclosure of the home addresses of individuals who provide this information to the government when applying for a pet license. Bozzi v. Jersey City.

In Bozzi v Jersey City, the Appellate Division held, relying on its precedential opinion in Bozzi v. Roselle Park, that OPRA’s privacy exemption does not ever apply in this situation, because people have no reasonable expectation of privacy in their name and address information when they apply to the municipality for a dog license. As I noted in my post about this opinion, the court’s ruling doesn’t just affect OPRA requests for pet license records; the Appellate Division interpreted OPRA’s privacy provision to mean that public bodies may not deny the disclosure of names and home addresses that are in any government record.

Accordingly, this case requires the Supreme Court to determine the meaning and scope of OPRA’s privacy requirement, and as a result, the Court’s opinion will have a significant impact on a wide range of OPRA requests.