Category Archives: Privacy

Appellate Division Upholds Confidentiality of Victims’ Records

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In an unpublished opinion issued today, the Appellate Division affirmed the GRC’s decision that a convicted felon may not obtain records pertaining to his victim and the victim’s family. Killion v. Hammonton Police Dept.

I believe this is the first appellate opinion dealing with OPRA’s provision (N.J.S.A. 47:1A-2.2) that a person convicted of an indictable offense may not have access to government records containing personal information related to the victim or the victim’s family. However, the opinion does not analyze this provision. Apparently, it was undisputed that the records in question fell within section 2.2; instead, Killion argued that this exemption didn’t apply because he made the OPRA request before he was convicted. The court summarily rejected this argument, saying that it would not second-guess the GRC’s conclusion that the privacy interests of the victim and the victim’s family required denial of the request.

The “Glomar” Response to OPRA Requests For Investigation Information

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An OPRA request to a law enforcement agency for records of its investigation of a particular person poses a knotty issue where, as is often the case, there has been no public disclosure of whether that individual is under investigation. In that situation, the agency would necessarily seek to protect the confidentiality of the investigation. But a response that the agency’s records are exempt (under, for example, OPRA’s investigatory or privacy exemptions) would reveal the existence of an investigation–a disclosure that itself would harm the affected person’s privacy interest.

FOIA case law solves this problem by permitting agencies to give the so-called Glomar response; this means that the agency tells the requestor that it neither confirms nor denies the existence of the records requested. The Justice Department explains that this response is necessary under FOIA to avoid revealing exempt information, such as whether someone is being investigated.

This concept is not limited to federal law. Recently, the New York Appellate Division held that the Glomar response is proper under New York’s public record law, and upheld the NYPD’s refusal to confirm or deny the existence of investigatory records concerning certain individuals. Matter of Abdur-Rashid.

No New Jersey court has ever addressed the validity of this type of response under OPRA. Nevertheless, the FOIA Glomar approach is a sensible way to avoid harming privacy and investigatory interests, which OPRA seeks to protect, and it ought to be followed in New Jersey.

Privacy Rights: The Real Importance of the Supreme Court’s New OPRA Case

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The Supreme Court’s recent decision to review Matter of Fireman’s Ass’n Obligation to Provide Relief Application has attracted attention for presenting the novel issue of whether OPRA permits public agencies to file declaratory judgment suits concerning access to records. But the case also involves review of whether the Appellate Division correctly ordered disclosure of an applicant’s financial relief assistance award. This ruling raises crucial, unsettled issues concerning the extent that New Jersey law protects individuals’ privacy interests–issues of far greater public importance than the litigation procedure question presented by this matter.

I’ve previously expressed my view that the issue of whether agencies may file OPRA declaratory judgment suits is not especially significant. In most cases, agencies should have no need to bring a declaratory judgment action under OPRA–they can simply deny the request, and then defend that decision if a requestor files a court or GRC complaint. I doubt that declaratory judgment OPRA complaints will be filed very often, even if the Supreme Court rules that such actions are permissible.

In contrast, because public bodies often face OPRA requests for records that involve an expectation of privacy, the Supreme Court’s consideration of the privacy question in the Fireman’s Ass’n case is extremely significant. OPRA custodians have little case law guidance on how to handle the difficult issue of protecting privacy interests. The Supreme Court established the basic guidelines governing OPRA’s privacy provision in its 2009 Burnett opinion, but there are few published court opinions since then that have applied these standards.

The records sought in Fireman’s  Ass’n would reveal the recipient of financial relief payments and the amount paid. The Appellate Division determined that such information is subject to the expectation of privacy, because it shows that the award recipient was in financial distress. Typically, private information like this about a person’s financial status would be kept confidential. However, applying Burnett’s balancing test, the Appellate Division concluded that the interest in public disclosure, based on the allegation that there may have been some impropriety in granting an award to the applicant in question, outweighed the privacy interest.

The Appellate Division’s holding only affects the specific records in question in the case, but of course any discussion by the Supreme Court has much broader precedential value. The Supreme Court’s clarification of how to resolve privacy concerns raised by OPRA requests is sure to have an impact on access to many types of records.

Will the Supreme Court agree with the Appellate Division’s analysis, or give greater weight to the privacy interests that are present here? The answer to this question will affect how courts and record custodians should evaluate all future privacy issues raised by OPRA requests, and consequently will have an enormous effect on privacy rights in New Jersey.

Privacy Protection Applies To Public Employees Who Are Subjects Of Investigation

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Typically, when an investigation of possible government wrongdoing comes to light, newspapers and other requestors use OPRA or the common law to try to find out the names of the public employees under investigation. However, this information is confidential under the law’s protection of privacy.

This was confirmed again in a recent Appellate Division case, discussed here, which granted access under the common law to some records of an investigation into whether county employees had improperly used county equipment. While holding that certain investigatory records had to be released, the court upheld the confidentiality of witness names and similar information, citing the interests of privacy. The opinion does not say whether this holding covers the names of the employees who were investigated, but a subsequent news report makes clear that these names were kept confidential by the court.

This result is consistent with the settled rule that  basic principles of privacy prohibit the public release of names of individuals who are investigated, but ultimately not charged with a crime. Similarly, OPRA’s personnel exemption bars disclosure of the identities of public employees (including police) who are being investigated for possible disciplinary infractions.

Unfortunately, despite this clear law, requestors continue to ask custodians and courts to reveal this confidential information.

Home Addresses Under OPRA: An Unsettled Question

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Does OPRA require disclosure of individuals’ home addresses in the possession of a public body? Surprisingly, there is no precedential New Jersey case law that answers this question.

I was reminded of this as I read a recent Appellate Division opinion which did not even involve any OPRA issues. In this opinion, the court considered the enforceability of a Hoboken affordable housing ordinance.  A resolution adopted by the zoning board, which referenced a colloquy at the board meeting between a “resident” and representatives of a developer concerning the affordable housing obligation, was critical to the court’s decision. In discussing the resolution’s description of the resident’s statements, the Appellate Division said that although the resolution contained the name and address of the resident, the court “opted not to include this information in the opinion to protect the person’s privacy.”

The zoning board’s resolution is certainly a public document; yet the court made a point of withholding a name and address shown within this document on the basis of privacy.

Ironically, the Appellate Division is not always as protective of the privacy of home addresses in reviewing OPRA cases.  For example, in Bolkin v. Fair Lawn, it required the disclosure of the names and addresses of residents holding dog and cat licenses. Other court opinions, as well as several GRC decisions, have reached varying conclusions as to whether home addresses must be released under OPRA. There is no uniformity in the decisions because any case involving home addresses invokes OPRA’s privacy provision, which requires (per the Supreme Court) a fact-sensitive balance of various criteria to determine whether the need for disclosure outweighs the individual’s privacy interest.

In addition to being fact-specific, the Appellate Division rulings on OPRA and addresses are not published opinions. As a result, there is no judicial precedent providing guidance to custodians on the issue. As with OPRA requests for police body camera recordings, another situation involving privacy interests, custodians cannot rely on case law to assist them in making the difficult call as to whether to release a home address.

 

 

GRC: Redaction of Personal Email Addresses is Proper

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Record custodians often deal with government business emails sent from or to a personal  account. In a recent decision, D’Andrea v. N.J. Civil Service Comm., the GRC reaffirmed its prior rulings that personal email addresses are protected by the expectation of privacy and should be redacted. The GRC noted that while the public is entitled to know the identity of the individual who sent or received the email, the personal email address is private.

Because the New Jersey courts have not yet addressed this issue, agencies should look to the GRC’s decisions for guidance on handling personal email addresses shown in a government record.

New York Times Article on Pros and Cons of Public Access to Police Camera Videos

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This New York Times article of April 26, 2015 discusses issues that are being raised across the country with regard to giving the public full access to the recordings made by police body and motor vehicle cameras. The article’s title–“Downside of Police Body Cameras: Your Arrest Hits YouTube”– nicely summarizes the problem: privacy interests may be harmed if a video of any person’s interaction with the police is available to the public. This concern results from the assumption that public record laws would require disclosure to a requestor of any police camera video recording. The article notes that many states are seeking to amend their laws to preclude access to such videos.

New Jersey law does not have a specific provision governing disclosure of police camera videos, but the Appellate Division is considering the question of whether these videos fall within one of OPRA’s exemptions from disclosure. See this New Jersey OPRA Law Reporter post. The Appellate Division case focuses on the applicability of OPRA’s sections affording confidentiality to records in criminal investigations, but as the Times article shows, the statute’s requirement that agencies protect individuals’ privacy interests should also be taken into account in considering whether videos should be released.

In New Jersey, police departments should expect to confront the privacy issue whenever they receive requests for disclosure of a video, regardless of whether a criminal investigation is involved. The police come in contact with members of the public in a variety of ways that do not involve criminal activity or an arrest, from routine traffic stops to helping at the scene of an accident. OPRA custodians for police departments will have to deal with the sensitive issue of whether releasing videos in these situations–in effect, allowing them to be posted on the internet– will harm the privacy interests of the individuals shown in the videos.

Until a court addresses this issue, custodians will have to assess the privacy question on a case-by-case basis, under the test established by the Supreme Court in its Burnett opinion, which calls for balancing the requestor’s interest against the affected individual’s privacy interest.