Category Archives: Privacy

Supreme Court Holds That OPRA Requires Disclosure of Names And Addresses Of Bidders At A Public Auction

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The Supreme Court ruled today 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 under OPRA. Brennan v. Bergen County Prosecutor’s Office.

The Appellate Division had determined that the balancing test applicable to OPRA privacy claims weighed in favor of privacy here, but the Supreme Court stated that the balancing test did not apply in this case. The Court said the balancing analysis is to be conducted only where there is a “colorable claim” that access to the information would invade an “objectively reasonable expectation of privacy.”

The bidders here had no such colorable argument, according to the Court; it concluded that people bidding at an agency’s public auction–“a quintessential public event”–could not reasonably expect their names and addresses to be private. As a result, there was no basis to withhold this information under OPRA’s privacy exemption.

Unfortunately, the Court did not resolve the question that has caused difficulty for custodians since OPRA’s enactment–are home addresses exempt from disclosure under OPRA’s privacy protection? The Brennan opinion deals only with bidders’ information, and offers no guidance on how to handle the many other situations where an individual’s address is shown on correspondence or some other document held by a government entity.

Appellate Division Issues Useful Opinion on Security Exemption and Other OPRA Issues

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The Appellate Division issued a lengthy opinion today concerning various OPRA issues raised by a disappointed bidder for a State contract. Parsons Infrastructure & Environ. Group v. State. Although the opinion is not published, it contains helpful guidance on OPRA’s exemptions for security, trade secrets and privacy, as well as on how to calculate an attorney fee award for an OPRA litigant who is only partially successful.

The most important aspect of the opinion is that it’s the first appellate case to discuss the security exemption after the Supreme Court’s ruling on this exemption in its 2016 Gilleran opinion. The Appellate Division held that Gilleran, which denied access to a building security system, applies equally to other security concerns–in this case, the risk of compromising the State’s computer hardware, software and other information technology systems. The court upheld the denial of the OPRA request on this basis.

The court also affirmed the denial of access to portions of other bids as trade secrets, noting the “fundamental unfairness” of allowing the requestor to duplicate another bidder’s system.

In addition, the Appellate Division rejected the plaintiff’s argument that it should be granted access to this security and trade secret information under the common law right to know.

The court further determined that there was no basis, under OPRA’s protection of privacy, to withhold the names of the bidder’s employees who would be working on the awarded contract. Significantly, the court agreed with the trial judge’s conclusion that disclosure of the names was a relatively trivial aspect of the OPRA lawsuit, and warranted an attorney fee award to the plaintiff of only $3500 for achieving this minimal amount of success in the litigation.

Appellate Division Rejects Another OPRA Requestor Assault On Government Employees’ Personal Privacy

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Some requestors attempt to use OPRA to evade basic notions of privacy and gain access to personal information held by the government. This post from early 2017 discusses how public bodies frequently must defend OPRA litigation seeking disclosure of clearly private information. A recent Appellate Division case presents yet another example of this.

In Wolosky v. Boro of Washington, the requestor sought the municipal clerk’s 2015 payroll record. The Boro provided this document, redacting the deductions for pension contributions, pension loan payments and health insurance payments. The Appellate Division upheld this decision, because the redacted material is exempt personnel information.

The requestor also argued that the employee’s privacy interest in the withheld information should not block disclosure. The Appellate Division agreed with the trial judge’s rejection of this claim. The trial judge said that any public interest in disclosure of how much money the employee contributes for her health insurance and pension is “heavily outweighed” by her expectation of privacy in this information.

 

Precedential Appellate Division Opinion Holds That Student Records Are Not Accessible Under OPRA

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I’ve previously noted the difficult issue of whether OPRA requestors may obtain student records, in light of the privacy accorded to student information by education statutes. The Appellate Division recently answered this question. In a precedential opinion authored by Judge Sabatino, the court said that student records are not accessible under OPRA. L.R. v. Camden City School Dist., etc.

The plaintiffs in this case submitted OPRA requests for records related to special education students from a few school districts, and they indicated that they intended to request these records from every school district in the state. The Appellate Division held that OPRA does not grant public access to these records; instead, it said, the limitations on access to student records contained in the pertinent DOE regulations are controlling.

The court emphasized that anyone requesting such records must comply with the procedures and substantive requirements of the DOE regulations, and it highlighted that student records are not open to everyone; rather, they may be accessed only by the specific entities and individuals listed in these regulations.

The court said it was premature to address any claims for attorney fees made by plaintiffs. This leaves open an interesting question for future cases: given the court’s ruling that the DOE regulation, not OPRA, is the vehicle for obtaining student records, is OPRA’s attorney fee award provision applicable in the event of litigation over access to student records?

The Supreme Court’s Firemen’s Assn. Opinion Is A Victory For Privacy Rights

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I recently presented a seminar to a large group of government attorneys and record custodians on OPRA’s privacy provision. One of the themes of my presentation was that the courts have issued only a handful of precedential opinions on this aspect of OPRA, providing agencies with little guidance on how to handle privacy issues.

Coincidentally, at practically the same time I was making my presentation, the Supreme Court issued an important opinion on OPRA’s privacy exemption, Matter of NJ State Firemen’s Assn Obligation to Provide Relief Applications. As I predicted after the oral argument of this case, the Court came down firmly on the side of privacy in this case, and denied the request for disclosure of a firefighter’s relief award.

This opinion is especially notable because it shows that the Court gave heavy weight to the privacy interests that individuals have in their personal financial information.  The Court emphasized the strong need to protect these privacy interests and saw no real public interest in access to the information in question.

It can no longer be said that there’s a lack of judicial guidance on OPRA and privacy. The Supreme Court has clarified that privacy interests must be favored by public agencies, despite OPRA’s general policy of public access to information held by the government.

New “Mugshot Extortion” Law Raises OPRA Issues

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In a recent post, I noted that it’s not clear whether mugshots are public records under OPRA–although these photos are routinely posted online, the GRC has held them to be exempt under OPRA, and the federal courts have held that privacy precludes their release under FOIA.

The other day the Governor signed legislation that makes the answer to this question even less clear. The new statute seeks to stop what it calls the “extortionate” practice of websites that publish mugshots and charge people for removing them from the internet. Specifically, the legislation prohibits soliciting a “pecuniary benefit” in exchange for refraining from disclosing criminal history information about a person, including a mugshot.

Although this statute doesn’t mention OPRA, it states that “the law authorizes public access” to this type of information. But the statement that mugshots are public is contradicted by other language in the statute, which recognizes that privacy rights are affected by publication of mugshots and that people should not have to pay for removal from the internet of this embarrassing information.

This new statute puts OPRA custodians in a difficult position. They are faced with having to reconcile the legislative indications that mugshots are both publicly accessible and subject to the expectation of privacy.

Are Mugshots Public Records Under OPRA?

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The recent publication of Tiger Woods’ mugshot after his DWI arrest led to a number of articles discussing the privacy issues arising from the easy availability of mugshots online. The articles all start with the premise that it’s appropriate to place booking photos online, because they are public records. But is this true in New Jersey?

Certainly mugshots of people arrested in New Jersey are easy to find; a quick Google search reveals websites, like mugshots.com, containing such photos, as well as articles from NJ.com and other New Jersey news sites that include mugshots. I’m not sure how these photos made their way online, because it appears that mugshots may be exempt from public access under OPRA.

No New Jersey court has addressed the question of access to mugshots under OPRA. However, the GRC has ruled that OPRA exempts photos of people arrested from disclosure. Melton v. City of Camden, 2011-233 (2013). The GRC based its decision on Executive Order 69 (Whitman), which exempts “fingerprint cards, plates and photographs and similar criminal investigation records….”

In addition, there is a strong argument that mugshots are subject to OPRA’s protection of the reasonable expectation of privacy. New Jersey courts typically look to FOIA law to help interpret OPRA. Federal courts have established, under FOIA, that individuals have a privacy interest in these photos and therefore mugshots may not automatically be released to the public. See Detroit Free Press v. U.S. Dept. of Justice (6th Cir. 2016) (mugshots are “humiliating” photos that convey a message that the individual is guilty and damage the person’s reputation).

 

 

 

 

 

The Unsettled Issue Of How To Deal With OPRA Requests Involving A Third Party’s Confidentiality Interest

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Public bodies often struggle with requests for records in which third parties may claim a confidentiality interest. This problem may come up when a third party asserts a proprietary or investigatory interest in a record, and it occurs most frequently where a record contains information that may affect a person’s privacy interests. These requests present the custodian with a dilemma: under OPRA, the custodian must respect the privacy or confidentiality interest of any person, but the custodian typically is not able to explain the confidentiality arguments of that person.

The courts have not definitively said what procedure the custodian should follow when confronted with this situation. The Appellate Division has suggested that the party with the confidentiality interest should be given notice of the request (see, for example, Gannett v. Middlesex County), but the court has never expressly mandated this, nor has it explained precisely how the request should be handled by the public body after this notice is provided.

Hopefully, the Supreme Court will soon provide guidance on these issues. During oral argument this past January in IMO NJ State Fireman’s Assn Obligation to Provide Relief Applications, a pending case involving OPRA’s privacy exemption, the justices spent a lot of time discussing what procedure a custodian should follow when a third party has a privacy interest in the requested record. The fact that these questions came up doesn’t guarantee that they will be answered in the Court’s opinion, but it seems likely that the Court will deal with the procedural issues in some fashion.

 

Court Upholds Privacy of OPRA Requestors’ Home Addresses, Telephone Numbers and Email Addresses

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The Appellate Division ruled today that a public body correctly withheld, under OPRA’s privacy provision, the home addresses, telephone numbers and email addresses of individuals who had submitted OPRA requests. Wolosky v. Somerset County.

The court determined that although OPRA requests themselves are government records, this does not mean that personal information shown in an OPRA request must be disclosed. Instead, OPRA’s privacy protection applies to such information. The Appellate Division conducted the balancing test required under OPRA’s privacy provision, and concluded that requestors’ personal contact information should not be disclosed.

Notably, the court indicated that the requestor here had shown no genuine need to obtain disclosure of this personal information. This case is another example of how some requestors seek to use OPRA to infringe on individuals’ privacy rights.

The Appellate Division’s opinion continues the recent trend of courts holding, in non-precedential opinions, that home addresses are protected by OPRA’s privacy section. See this post for further discussion of this case law.

A Few Comments on the Supreme Court Argument in the Fireman’s Assn Relief Case

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The Supreme Court heard argument a few days ago in IMO NJ State Fireman’s Assn Obligation to Provide Relief Applications. I have a few comments, based on my observation of the argument.

-It wasn’t clear how a majority of the justices felt about the question of whether public bodies may file OPRA declaratory judgment suits. In any event, as I’ve said before, I think the answer to this question is likely to have little impact on future OPRA cases.

-The justices were sympathetic to the privacy concerns raised by the requestor’s demand for records showing whether an applicant had received financial assistance. The justices all seemed to agree that the records in question are similar to those showing a person’s receipt of welfare assistance, which are strictly confidential. I think the Court may very well reverse the Appellate Division and hold that OPRA’s privacy exemption precludes release of the fireman’s relief records.

-The justices spent a lot of time discussing what procedure a custodian should follow when a third party has a privacy interest in the requested record, such as, is the custodian required to notify that party of the OPRA request? It looks like the Court may issue much needed guidance on how to handle this problem.