Category Archives: Court opinions

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The Appellate Division’s recent unpublished opinion in Benigno v. Office of the State Comptroller doesn’t break any new ground, but it contains helpful reminders of the legal standards that govern some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

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.

2023 OPRA Case Law Review

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The courts issued were many OPRA case rulings during 2023, but only a handful of precedential opinions. However, the three precedential opinions resolved crucial government records law questions.

In June, the Supreme Court issued a landmark opinion, Gannett v. Neptune Tp., holding that a successful common law records requestor is not entitled to an award of attorney fees. This ruling ended decades of uncertainty as to whether common law requestors, like OPRA requestors, may demand that public bodies pay their litigation fees.

The Appellate Division issued two published opinions involving OPRA. Just before the end of the year, the court determined that the custodian had properly withheld disclosure of a body worn camera video under OPRA’s exemption for the confidentiality of law enforcement records concerning a person who has not been arrested or charged with a crime. Fuster v. Tp. of Chatham. This holding rested on the court’s resolution of an issue of first impression–it concluded that the disclosure exemptions of the body worn camera statute do not rescind other exemptions provided for in OPRA.

Lipsky v. NJ Assn of Health Plans dealt with a frequent issue for OPRA custodians–how to respond to a request for records potentially contained within employees’ cell phones. The Appellate Division ruled on a discovery dispute, holding that a party in pending litigation may not compel a non-party State agency to turn over its employees’ State-issued and personal cell phones to the party’s expert for forensic examination. This conclusion relied heavily on OPRA law. The Appellate Division emphasized that public employees have strong privacy interests in their phones’ contents, so where there’s an OPRA request for records from employees’ phones, it is improper for the agency to search the device for responsive records. Instead, to protect the privacy interests at stake, the agency must ask employees to conduct the search of their devices for responsive records.

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.

2022 OPRA Case Law Review

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Here’s a look back at the most important OPRA opinions issued by the courts this year.

The Supreme Court issued two OPRA opinions in 2022, both in March–Libertarians for Transp. Govt. v. Cumberland County and Rivera v. Union County Prosecutor. In Libertarians, the Court held that an internal settlement agreement between a public employer and its employee is an exempt personnel record, but the portion of the agreement that contains the reason for the employee’s separation from employment must be disclosed. In Rivera, the Court reaffirmed that records of police internal affairs investigations are exempt under OPRA, but may be disclosable under the common law ability to access government records.

See also this post for additional analysis of how these two opinions have a significant impact on OPRA law and practice.

The Appellate Division also issued some major OPRA opinions, addressing issues of first impression:

–Underwood Properties v. Hackensack dealt with a common problem in OPRA matters–an attorney, in the course of representing a client, submits an OPRA request under his own name, rather than the client’s name, and then the client files a complaint over the denial of the request. The court held that the client has standing to file the OPRA litigation, despite not being identified as the requestor in the OPRA request.

Underwood is also one of the few published opinions that addresses the calculation of a requestor’s attorney fee award.

–C.E. v. Elizabeth Public Sch. Dist. held that settlements of OAL cases involving IDEA special education challenges must be disclosed under OPRA.

–ACLU v. CPANJ held that the County Prosecutors Association of New Jersey is not an agency subject to OPRA.

Appellate Division Issues Useful Opinion on Dealing with Requests for Attorney Invoices

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OPRA states that attorney bills must be disclosed, but they may be redacted to remove any attorney-client privileged information on them. I’ve always understood this provision to mean that it’s permissible to redact anything on the bill that would reveal something about legal advice or litigation strategy. For the first time, the Appellate Division (in an unpublished opinion) has addressed this aspect of OPRA, and confirmed that this interpretation of the attorney invoice language is correct.

In Mears v. Boro of Lawnside, the custodian redacted “every word of every line item” description of the attorney’s services on the invoices, as falling within the attorney-client privilege. The Appellate Division reviewed the invoices and concluded that none of the entries were covered by the privilege. The redactions here all shielded the type of descriptions that are typically put on an attorney’s bill, such as, for example, review correspondence; participate in phone conference with court, or with identified individuals; and draft letter brief in advance of oral argument. The court stated that these redactions violated OPRA, because the descriptions did not reveal “confidential information, trial strategy, or work
product.”

The Boro had also redacted certain expenses shown on the bills, for filing fees, mailing fees, and a monthly retainer. The court invalidated these redactions as well, again because these expenses did not disclose any privileged information.

Appellate Division Issues Significant Published Opinion on OPRA Litigation and Attorney Fee Awards

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The Appellate Division’s January 24th opinion in Underwood Properties v. Hackensack is the first precedential court opinion on a problematic OPRA practice that often occurs: an attorney submits an OPRA request under his own name, and then the attorney’s client files a complaint over the denial of the request. The court held that the client has standing to file the OPRA litigation, despite not being identified as the requestor in the OPRA request.

Underwood is involved in lawsuits against Hackensack concerning its redevelopment plan. Separately, Underwood’s counsel submitted, under his own name, OPRA requests to the City for correspondence of various City officials. After the City denied the requests on various bases, Underwood filed a lawsuit, which resulted in some documents being released.

In the trial and appellate courts, Hackensack argued that Underwood lacked standing to file a complaint, because it was not the requestor. The trial judge rejected this argument, on the ground that counsel filed the OPRA requests on behalf of his client and within the scope of his representation. The Appellate Division agreed with this reasoning. It added that OPRA’s goal of access to public records, and the courts’ liberal standing rules, supported allowing the client to pursue the litigation.

I don’t think the general purpose of OPRA and standing policies are relevant here. As I’ve noted previously, OPRA only permits the “requestor” to file a court action challenging a denial of a request, so there’s simply no basis to permit someone who did not make the request to litigate over its denial. This problem doesn’t exist where it’s clear that the client is the requestor, and the attorney simply submitted the OPRA request on behalf of that client. But if that’s the case, the OPRA request should identify the client as the requestor.

In addition to setting the above precedent, Underwood is a useful opinion because it’s one of the few cases in recent years to deal with calculating an appropriate attorney fee award where the requestor achieves only partial success in its OPRA litigation. In 2005, the Supreme Court held that the amount of the award must be based on a “qualitative analysis” of the amount of litigation success achieved by the requestor, but there is little case law applying this analysis. In Underwood, the court upheld the trial judge’s fee award as complying with the required qualitative analysis. The trial judge reduced the amount of fees requested, from about $14,500 to $3750, due to the requestor’s limited suceess in obtaining documents and its failure to vindicate OPRA’s purpose.

The Limited Scope of OPRA’s Exemption for Non-Criminal Investigations

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A recent unpublished Appellate Division opinion, Rosario v. NYNJ Port Authority, provides a reminder of the limited nature of OPRA’s exemption for records related to an investigation that does not involve a criminal matter.

Rosario involved the Port Authority’s denial of a request by the victim of a traffic accident for records related to the incident. The basis for denial was that there was an investigation in progress regarding the accident. But the applicable section of OPRA, N.J.S.A. 47:1A-3, allows withholding of such records only if disclosure would be “inimical to the public interest.” See this post for a discussion of the Supreme Court’s interpretation of this statutory section.

The court upheld the trial court’s order requiring disclosure of the requested records. It concluded that the requestor had a strong interest in obtaining the records for the purpose of filing tort litigation concerning the accident, and the Port Authority had failed to provide any support for the claim that there would be harm from disclosure under the facts here.