Category Archives: Privacy

Attorney General Requires The Public Disclosure of Identities of Police Officers Who Have Disciplinary Infractions

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The Attorney General has announced an important police reform policy that has a major impact on New Jersey public records law. Attorney General Law Enforcement Directive 2020-5 requires, for the first time in New Jersey, that the names of police officers who have committed serious disciplinary violations must be released to the public.

The Directive states that police departments must publicly disclose the identity of an officer who has been the subject of a disciplinary sanction involving termination of employment, reduction in rank or grade, and/or a suspension greater than five days. The Directive takes effect at the end of August, and requires law enforcement agencies to publish reports listing recently-disciplined officers by the end of 2020. The Directive also notes that agencies have the discretion to release historical information about prior disciplinary violations by police officers; the Department of Law and Public Safety will do this, with regard to its law enforcement officers, by July 15.

The Attorney General’s mandate is obviously a crucial step in trying to accomplish much-needed police reform, consistent with recent national efforts to increase transparency regarding police misconduct. It also represents a momentous change in New Jersey’s public records law. When OPRA was enacted in 2001, it codified and continued what had been the law for many decades: public employee personnel information, including an employee’s disciplinary record, may not be disclosed to the public.

I think it’s inevitable that affected officers will file litigation over the Directive’s legality. It will be interesting to see if the Attorney General’s reasonable decision to require greater transparency with regard to law enforcement officers’ disciplinary information will withstand a legal challenge.

A Major OPRA Ruling: Home Addresses Must Be Disclosed

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Since OPRA’s enactment, custodians have struggled with the unsettled question of whether a person’s home address is confidential, under the exemption for the reasonable expectation of privacy. This issue comes up in many OPRA requests; one that frequently recurs is a request for the names and addresses of people who submitted pet license applications to municipalities. The Appellate Division has now issued a definitive, precedential opinion on this issue, holding that the home addresses on these licensing records must be disclosed. Bozzi v. Roselle Park.

The requestor in this case, an installer of invisible dog fences, requested the names and home addresses of municipal residents from their dog licenses. Previous cases addressing this type of OPRA request have differed on whether the individual’s privacy interest in this information outweighed the need for its disclosure. However, in Bozzi the Appellate Division held 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 for a dog license.

The court’s holding is significant, in that it resolves the longstanding question of whether municipalities must grant access to addresses found in pet license records. But the opinion is of even greater importance because it affects all OPRA requests pertaining to home addresses. The court went beyond the specific issue of addresses in dog license records, and stated, for the first time in a precedential opinion, that the Legislature, in OPRA, did not intend to block disclosure of names and home addresses in any government record.

Although this portion of the opinion may be dicta, the Appellate Division’s direction is unambiguous: OPRA requests for records that disclose a person’s name and address should be granted.

Appellate Division Rejects OPRA Privacy Exemption Claim

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A recent Appellate Division opinion in an OPRA case surprisingly rejected an appropriate effort by a public body to protect individuals’ privacy interests. Frega v. Boro of Saddle River.

The Borough of Saddle River approved a “deer cull” for the 2018-19 hunting season. The requestor, who was opposed to the deer cull, submitted an OPRA request for the names of the hunters who would be participating, as well as the addresses of properties on which the hunting was authorized.

The Boro denied the request under OPRA’s privacy exemption, due to threats that had been made against supporters of the deer cull. The record showed that people opposed to the cull had made various threatening statements toward Boro officials for their decision to allow it; for example, one Facebook post said, “They are sick and disgusting people . . . Now is the time to stop . . . . Everyone would like to beat the hell out of the entire bunch of them . . . they will get it back in spades. . . . Watch . . . . people are very upset.”

The Appellate Division upheld the trial judge’s decision rejecting the privacy argument. The court determined that individuals participating in the deer hunt had no colorable claim of privacy. It concluded that this case presented the same situation as in Brennan v. Bergen Prosecutor, where the Supreme Court said that a public auction, held by a public body, is a “quintessential public event,” and therefore bidders at such an auction have no reasonable expectation of privacy under OPRA. Unfortunately, the Frega court did not explain how hunting in a deer cull that the government has approved is the same as bidding on property at a government-run auction.

The Appellate Division also concluded that the requestor’s interest in obtaining the names of participants in the deer cull outweighed the affected individuals’ privacy interests. The court determined that they had no real privacy interest, because the risk of harm to these individuals was speculative.

The idea that the potential harm here was too speculative to warrant protection under OPRA strikes me as untenable, in view of the many threats of violence that were in the record. The court downplayed these menacing comments as simply “hyperbolic expressions of animosity toward the practice of hunting.” But that’s exactly why there was a genuine risk of harm from disclosure of hunters’ identities: it’s reasonable to assume that this extreme anger at the practice of hunting will be directed at the individuals who actually engage in the hunting.

Moreover, there appears to be no legitimate reason for the requestor to obtain the names of hunters. The opinion says only that the requestor needs this information to inform herself about the efficacy and risks of the deer hunt, without explaining how having participants’ names serves this purpose. In my view, the privacy balancing test clearly favors withholding the hunters’ names.

The Appellate Division’s opinion is not precedential. However, it’s another example of the problems faced by public bodies in attempting to comply with OPRA’s mandate that they protect citizens’ legitimate privacy interests.

Supreme Court To Review Scope Of OPRA’s Personnel Exemption

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The Supreme Court recently announced it will review an OPRA case with major implications for the privacy of public employees’ personnel records. Libertarians for Transparent Govt. v. NJ State Police.

The Court’s website states the issue in the case is whether OPRA’s personnel exemption “require[s] disclosure of the name of a state trooper listed in the Office of Professional Standard’s annual report to the Legislature as having been terminated for misconduct?”

The Appellate Division upheld the denial of this request based on OPRA’s exemption that prohibits public disclosure of personnel information. Its straightforward rationale was that revealing the trooper’s name would disclose the precise information made confidential by OPRA’s personnel exemption–the fact that the employee was disciplined.

It’s not clear why the Supreme Court would want to review this unambiguous OPRA provision. It’s possible the Court wants to consider creating a new exception that would grant the public access to disciplinary information about law enforcement officers. Or, perhaps it recognizes that there’s a need for a precedential opinion upholding personnel privacy; as I’ve discussed, OPRA requestors often demand disclosure of personnel information, despite the clear legislative statement that such information is confidential.

Pet Owners’ Home Addresses Should Be Held Exempt Under OPRA

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Records custodians frequently confront the troublesome question of whether individuals’ home addresses must be disclosed under OPRA. For municipalities, this question seems to come up most often in requests for the names and addresses of those who have dog or cat licenses. Although OPRA’s protection of the reasonable expectation of privacy should usually preclude disclosure of this information, some trial court judges have ordered the release of pet owners’ names and addresses.

This article indicates that a judge recently rejected Jersey City’s argument that OPRA’s privacy provision bars disclosure of home addresses listed on dog licenses, and issued similar rulings in cases involving Secaucus and Kearny. According to the article, the requestor wants the information so that he can try to sell invisible fences to dog owners.

In this situation, where a requestor wants home addresses simply to solicit business, I think that OPRA’s privacy exemption prohibits release of this information.

There’s no question that home addresses in the possession of a public body are subject to individuals’ reasonable expectation of privacy. The Supreme Court has held that where this privacy expectation exists, OPRA requires that the privacy interest be balanced against the extent of the public need for disclosure of the information in question. In this situation, where the requestor’s only interest in disclosure is for his own commercial benefit, there is no public interest served in releasing the home addresses. As a result, the balancing test clearly favors confidentiality.

Hopefully, the Appellate Division will eventually correct the mistaken idea that under OPRA, a requestor’s commercial need for home addresses overrides the privacy interests of pet owners.

Appellate Division Again Rejects Attempt To Compel Disclosure of Personnel Records

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The Appellate Division recently upheld the denial of an OPRA request for the name of a State Trooper who had been discharged for misconduct. Libertarians for Transparent Govt v. NJ State Police.

This unpublished opinion applied settled law here; there’s simply no question that OPRA prohibits public disclosure of this confidential personnel information. What’s notable about this case is that it provides another example of an ongoing problem I’ve noted previously: some requestors seem to think that OPRA overrides legitimate personal privacy interests.

The requestor here, the Libertarians for Transparent Government organization, seems dedicated to getting a court to declare that OPRA’s personnel exemption is void, at least with regard to law enforcement officers. It argued in this case that OPRA’s exemption for disciplinary information should not apply to law enforcement. And the Appellate Division rejected this group’s similar effort to disregard personnel privacy in another OPRA case last year, involving a prosecutor’s office employee.

New York Times Editorial Board Makes The Case For Why Home Addresses Should Be Exempt

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All who deal with OPRA routinely face the difficult question of whether home addresses in government records are confidential. Although the courts have recognized that there’s a privacy interest in a home address, they have sometimes held that this personal information is not exempt under OPRA.

This recent opinion piece by the the New York Times editorial board, “Home Addresses are Up for Sale. Time to Take Back Your Privacy,” makes a compelling argument for why people have a strong interest in maintaining the privacy of their home addresses. The key point is that the easy accessibility of home addresses online is dangerous, as this information can be “weaponized” by “trolls…, stalkers, domestic abusers and criminals.”

For this reason, as the Times notes, sites like Facebook and Twitter prohibit the posting of a person’s address. I think New Jersey courts should similarly enforce OPRA’s privacy exemption, and prevent OPRA requestors from accessing individuals’ home addresses.

Supreme Court’s New OPRA Opinion Protects Privacy Interests Concerning MVRs

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The Supreme Court’s recent opinion in Paff v. Ocean County Prosecutor’s Office is an important victory for privacy rights, even though the Court rejected the specific claim made in the case, that the arrested driver’s privacy would be violated by release of the MVRs of her arrest.

How can an opinion rejecting a privacy claim be a win for privacy interests? Because the Court expressly stated that as a general matter, people have a reasonable expectation of privacy in MVRs. The Court made clear that in all cases involving the potential release of such a video, the privacy interests of the individuals shown must be considered.

With this language, the Court corrected the problematic Appellate Division opinion in the Paff case. The appellate court had held that people have no privacy interest whatsoever with regard to MVRs, stating: “Drivers and passengers in vehicles operating on public roadways do not have a reasonable expectation of privacy in an MVR recording.” Fortunately, the Supreme Court did not leave in place this erroneous conclusion, and instead issued an opinion that appropriately protects the privacy rights of people shown in police videos.

The driver in the Paff case failed to satisfy her specific claim of privacy because she presented no explanation for her position. But the key point is that the Court recognized that those shown in MVRs can make legitimate claims that their privacy may be harmed by disclosure of the video.

Supreme Court: Police MVRs Pertaining To Criminal Investigations Are Exempt Under OPRA

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In Paff v. Ocean County Prosecutor’s Office, issued today, the Supreme Court held that OPRA’s criminal investigatory record exemption applies to police dash cam recordings (MVRs) when the MVR is made pursuant to an order of the local police chief. The effect of this ruling is that the public cannot obtain, under OPRA, any MVR connected with a criminal investigation.

The issue in this case was whether a police chief’s order requiring his department’s officers to make MVRs in certain situations means the MVR is required by law to be made. If a record is required by law to be made, it does not satisfy the criminal investigatory record exemption. The Court ruled that an order issued by a police chief does not have the force of law, and therefore the exemption applied.

This opinion, together with the Court’s 2017 Lyndhurst opinion, means that all police MVRs pertaining to a criminal investigation are exempt under OPRA. In Lyndhurst, the Court held the MVR to be exempt because there was no requirement, either by the local police department or in Attorney General directives, that the MVR be made. In Paff, the Court made clear that MVRs are exempt even if a police department does have a requirement that MVRs be made.

An MVR may still be accessible under the common law, depending on the circumstances of the particular case. The Court remanded the Paff case for a determination of whether the MVRs should be disclosed under the common law.

The Court also held that OPRA’s privacy exemption did not preclude disclosure of the MVRs. The driver had objected to release on privacy grounds, but identified no specific privacy concerns. The Court indicated that there may be cases where a person’s reasonable expectation of privacy will warrant withholding or redacting a police video, but a generic privacy-based objection will not be sufficient.

The Extent of OPRA’s Privacy Exemption Is Not Clear, Despite Recent Supreme Court Opinions

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Since OPRA’s enactment, public bodies have struggled with requests that affect privacy interests. When presented with such a request, custodians must determine if there’s a reasonable expectation of privacy, and then apply a balancing test, weighing the strength of the privacy interest against the need for public disclosure of the information in question. The case law does not provide definitive guidance on handling these issues, because courts have reached differing conclusions on what information is entitled to privacy, depending on the facts of the particular case.

The two opinions issued by the Supreme Court over the past year on privacy under OPRA illustrate this problem. Last summer, in Matter of NJ State Firemen’s Assn Obligation to Provide Relief Applications  it upheld the confidentiality of a firefighter’s financial relief award, emphasizing the strong privacy interests that individuals have in their personal financial information.

In May 2018, the Court ruled that bidders at a public agency’s auction of forfeited property have no reasonable expectation of privacy in their names and home addresses, and therefore this information must be disclosed, without even applying the balancing test. Brennan v. Bergen County Prosecutor’s Office. The Court concluded that people bidding at an agency’s public auction could not reasonably expect their names and addresses to be private.

These cases, while important, have little applicability to OPRA requests that don’t involve bidders’ information or an individual’s financial status. Perhaps the Supreme Court’s upcoming opinion in Paff v. Ocean County Prosecutor, which concerns the privacy interests of those shown in police videos, will provide broader guidance on the contours of OPRA’s privacy provision.