Category Archives: Court opinions

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In an unpublished opinion issued today, the Appellate Division affirmed the GRC’s decision that a convicted felon may not obtain records pertaining to his victim and the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

2016 Case Law Update

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The first third of 2016 has seen the issuance by the courts of several major OPRA opinions. Notably, all of these rulings upheld the decision of the custodian.

-Paff v. Galloway Tp.

As I’ve previously said, this is the most important OPRA opinion in many years. The Appellate Division held, for the first time, that a public body is not required by OPRA to compile information from its computerized records to produce a requested report.

–C.G. v. Winslow Tp.

This trial court opinion is the first New Jersey published opinion on an issue that often comes up under OPRA– the extent of redactions that must be made, under federal law, of “personally identifiable information” within educational records concerning students. The court ruled that the school board had properly redacted parents’ and students’ initials, as well as the case docket numbers, shown on settlement documents.

–O’Boyle v. Longport

The Appellate Division upheld the confidentiality of information identifying properties that have made FEMA claims for flood damage. Again, this type of OPRA request often is made, but this is the first Appellate Division opinion to deal with this issue.

 

More Thoughts on the Paff v. Galloway Opinion

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In a recent post I called this new Appellate Division opinion the most important OPRA court opinion issued in years. What’s so significant about a ruling that OPRA does not require a town to create a log describing the emails of certain employees? Because in doing so, the court put to rest the notion, aggressively advanced by many requestors, that OPRA can be used to force public bodies to produce reports from the information contained in computer databases.

Since OPRA’s enactment, many requestors have claimed that the statute requires that custodians perform research and collate information for them. Although the courts have consistently rejected such OPRA requests, no court had dealt with the related question  of whether OPRA imposes on custodians the duty to query the agency’s databases to produce whatever report the requestor seeks. The Appellate Division has now made clear that OPRA does not have such a requirement.

This ruling has real, practical consequences. As I’ve noted before, handling OPRA requests is quite costly. One significant cost is that when agency employees are creating new reports for requestors, they are not performing their other responsibilities, and government efficiency suffers. The harm to government operations is clear if, as the requestor argued in the Galloway case, OPRA mandates that public employees spend their time serving as research staff for all requestors.

Fortunately, the court recognized that this is not the intent of OPRA and confirmed that custodians do not have to create reports, lists and other compilations for requestors.

Appellate Division Issues The Most Important OPRA Opinion In Years

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Since OPRA’s enactment, on an almost daily basis custodians have struggled with the issue of whether they  must comply with a request that they produce a report showing certain information extracted from an agency’s computer databases. See this post for additional discussion of the question. Although the compilation sought can be put together by running an electronic search, the statute does not clearly require custodians to perform this function and produce the requested report.

In a precedential opinion issued today, Paff v. Galloway Township, the Appellate Division unambiguously held that OPRA does not permit this type of request, because it involves the creation of a new record. The court stated that “OPRA does not require the creation of a new government record that does not exist at the time of a request, even if the information sought to be included in the new government record is stored or maintained electronically in other government records.”

The requestor in this case had asked the Township for a log showing the sender, recipient, date and subject matter of emails of certain Township employees over a specific period of time. He argued that OPRA requires the log to be disclosed because the information requested is part of the emails, which are government records, and the data can be easily compiled into a log. But the court rejected this position because the record that was actually requested–the email log itself–simply did not exist, and therefore a new record would have to be created.

Critically, the court noted that the ease of compiling a particular log is not relevant. It understood that a contrary ruling would have “far-reaching implications,” in requiring public agencies to produce many kinds of new lists and compilations.

This is why this opinion is so significant. The requestor’s argument did not apply only to email logs; it covered any compilation of information drawn from any agency database. If the requestor’s position had been upheld, OPRA would have become a vehicle for requestors to require public bodies to compile and produce an unlimited variety of reports from the agency’s records. This result is completely contrary to the basic principle that OPRA does not obligate record custodians to research and collate information for requestors.

While other OPRA cases, such as ones involving law enforcement records, may receive more press attention, the Paff v. Galloway opinion will have a far greater impact on the daily work of all record custodians in New Jersey.

Appellate Division Issues Important Opinion: FEMA Claim Information Is Confidential Under OPRA

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Om March 14, the Appellate Division issued an opinion, O’Boyle v. Boro of Longport, upholding the confidentiality of information concerning properties that have made FEMA claims for flood damage. This type of information is often sought under OPRA, in view of issues concerning, for example, damage from Hurricane Sandy and other storms, but the Appellate Division has never before resolved whether OPRA requires disclosure of FEMA-claim records held by state and local agencies.

The request in this case asked for the addresses, amounts of losses and dates of losses for properties in Longport that had made certain claims under FEMA’s National Flood Insurance Program. The court determined that disclosure of this information by public bodies is prohibited by federal regulations governing FEMA records. The court therefore held that the records are confidential under OPRA’s exemption for records exempted by federal law.

The appellate court also agreed with the trial court’s conclusion that the requested information is protected as well by an individual’s expectation of privacy.

This is a very significant opinion. As noted, although requests for this type of FEMA information often come up, there have been no court cases addressing whether these records are disclosable under OPRA. It’s helpful to have an Appellate Division opinion that deals with this issue. Hopefully, the Appellate Division will eventually recognize the importance of the O’Boyle opinion and reissue it as a published opinion, rendering it precedential for future cases.

 

Trial Court Issues Precedential Opinion On Confidentiality of Student Records Under OPRA

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A trial court recently issued a published opinion, C.G. v. Winslow Tp. Bd. of Ed., which provides valuable guidance on how to apply the student record confidentiality requirements of the Family and Educational Records Privacy Act (“FERPA”) under OPRA.

The OPRA request at issue in C.G. asked the Winslow Township Board of Education for settlements of any claims made on behalf of students over a 5-year period. The Board provided the settlements, with redactions of the parents’ and students’ initials shown in the documents, as well as the case docket numbers. The redactions were based on FERPA’s mandate that “personally identifiable information” within educational records concerning students must be kept confidential.

The requestors argued that initials and docket numbers are not confidential, but the court held that the Board properly redacted this information in accordance with FERPA. This statute prohibits disclosure of personally identifiable information of students, which includes information that “alone or in combination…would allow a reasonable person in the school community…to identify the student with reasonable certainty.” The judge cogently reasoned that obtaining either the initials of students and parents involved in a case, or the case docket numbers, would enable a person, in conjunction with other publicly available information, to figure out the identity of particular students.

Trial court opinions are rarely published. The publication of the C.G. opinion indicates that the Judiciary recognized that precedent was needed to resolve the unsettled issue of redacting potential identifying information in student records, which various school districts have had to litigate with OPRA requestors. In addition, the opinion will be helpful to higher education institutions, which are also subject to FERPA and, as I’ve previously discussed, have not had the benefit of any OPRA case law with regard to their obligation to withhold information that would reveal a student’s identity.

 

 

Trial Court: Resumes of Unsuccessful Job Candidates are Confidential

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Mercer County Assignment Judge Jacobson recently ruled that the City of Trenton properly denied an OPRA request for the resumes of the applicants who were not chosen for the position of chief municipal prosecutor. As discussed in this earlier post, OPRA’s personnel exemption prohibits a public body from releasing the resumes of the individuals who applied for jobs, but were not appointed.

It appears that the judge (as is her usual practice) did not issue a written opinion. The news article indicates that she rejected the argument that Executive Order 26 (2002) imposes upon a public body the obligation to contact the candidates to find out if they consent to disclosure of their resumes. The judge recognized that adding this requirement to the custodian’s duties would be contrary to OPRA.

The judge also disagreed with the plaintiff’s position that the executive order makes resumes public documents, on the ground that an executive order cannot override the statutory requirement that personnel records are confidential.

There is no published court opinion that expressly holds that resumes of unsuccessful job applicants are within OPRA’s personnel exemption, probably because it is so clear that resumes are confidential personnel records. Any doubt on this question is dispelled by the Supreme Court’s opinion in Kovalcik v. Somerset Prosecutor, where the Court held that OPRA permits disclosure of only an extremely limited amount of personnel information.

Interestingly, when I argued this case, some of the justices suggested, during the oral argument, that Executive Order 26 was invalid because it conflicts with OPRA’s personnel exemption. However, the Court’s opinion does not address this. In my view, any requirement that makes resumes public would in be invalid,  as the statute and Kovalcik clearly do not authorize disclosure of these personnel records.

OPRA 2016: Expect Some Landmark Court Opinions

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In 2016, the courts are likely to render several major OPRA opinions dealing with new issues. Most attention, of course, will be on the two OPRA Supreme Court cases, Gilleran and Lyndhurst, which will be argued, and perhaps decided, this year. But there are also several cases that the Appellate Division will be deciding which may have an even greater impact on public bodies’ handling of OPRA requests.

It’s not clear when the Supreme Court will issue its opinions in Lyndhurst and Gilleran. The Court granted review of these cases in November and December 2015, and it usually issues its opinion around 12-16 months after granting review of a case. These cases involve the first time that the Court will consider the scope of OPRA’s exemptions for criminal investigatory records (Lyndhurst)  and for records related to safety and security (Gilleran).

Gilleran raises another important issue that has never been definitively addressed by the New Jersey courts–the interpretation of OPRA’s provisions concerning requests that are burdensome and disruptive. The request in Gilleran sought 14 hours of security camera footage. As explained here, although the Appellate Division described this request as “unreasonably burdensome” and “virtually impossible to accomplish without devoting the time and services of multiple employees,” it did not decide whether the request was invalid for this reason. Hopefully, the Supreme Court will not also disregard the crucial question of whether the law permits such burdensome requests.

Even if the Supreme Court opinions are not issued during 2016, this year will still see extremely significant case law coming from the Appellate Division. Here are some key pending appeals:

–Paff v. Galloway Tp. presents a question that often comes up, but has never been resolved: is a custodian obligated under OPRA to create a new document from information contained in an agency’s database?

-Gannett v. Borough of Raritan involves several novel issues concerning access to records in electronic format and the amount a public entity may charge the requestor for converting the records to that format. The case is especially notable because the court is also reviewing the reasonableness of the $600,000 attorney fee award granted to the plaintiff. I expect this case to establish precedent governing how attorney fee awards should be calculated under OPRA.

–North Jersey Media v. Governor’s Office raises an issue that directly affects every public employee who handles OPRA matters–whether trial court judges have the legal authority to impose OPRA’s financial penalties for violations.

-Requestors continue to press for disclosure of information from internal affairs files. Paff v. Bergen County presents the issue of whether the names of officers and complainants shown in police department internal affairs complaints  must be disclosed.

2015 OPRA Case Law Review

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2015 saw a number of noteworthy developments in OPRA case law. The courts and the GRC issued a few hundred OPRA opinions, on a wide range of issues. The following are the most significant opinions that came out in the past year.

The Appellate Division issued two major precedential opinions, Gilleran and Lyndhurst, dealing with OPRA’s law enforcement and security exemptions. Although the Supreme Court is reviewing both of these cases, it’s unlikely the Court will issue its opinions before 2017, making the Appellate Division opinions binding law for at least the next year.

–Gilleran v. Bloomfield Tp.: The Appellate Division held that the Township should not have denied a request for recordings from a building surveillance video camera. But the real importance of this opinion is that the court recognized that law enforcement interests typically support the confidentiality of such recordings. Also, as explained here, the court said that requests for these videos may be invalid under OPRA’s “substantially disrupt[ive]” provision.

–North Jersey Media v. Lyndhurst: The Appellate Division held that virtually every record connected with a criminal investigation is confidential under OPRA, including police motor vehicle recordings.

Other published appellate opinions:

–A.A. v. Gramiccioni: The Appellate Division held, for the first time, that neither OPRA nor any other law authorizes an OPRA requestor to file an anonymous court complaint. The opinion also contains an analysis of the requirement that OPRA complaints must be verified in accordance with court rules.

–Lagerkvist v. Office of the Governor: This is the Appellate Division’s most recent explanation of what constitutes an invalid research request. In addition, for the first time, the court expressly held that OPRA does not require a records custodian to work with the requestor to turn an invalid request into a proper request that will result in providing the information sought by the requestor.

–Matter of the NJ Firemen’s Ass’n Obligation to Provide Relief Applications: In another case of first impression in New Jersey, the Appellate Division held that a custodian may not file a declaratory judgment action against a requestor concerning whether records may be withheld.

In addition to the above published opinions, the Appellate Division issued several unpublished OPRA opinions that are useful and important, even though they are not considered precedential.

-In NJ 2d Amendment Soc. v. State Police, the Appellate Division upheld the validity of a regulation adopted by the Department of Law and Public Safety which exempts from disclosure under OPRA any information that may reveal the duty assignment of a law enforcement officer.

–Academy Express v. Rutgers: The appellate court rejected an argument often raised by requestors and ruled that a custodian is not obligated to give a detailed description of the records that are withheld in the response to the OPRA request. In addition, the court stated that an OPRA complaint cannot be brought as part of a complaint asserting non-OPRA claims. It also reaffirmed the rule that a request for all correspondence concerning a topic is invalid.

–Shipyard Associates v. Hoboken contains a cogent description of the law governing what constitutes an invalid OPRA request.

The GRC issued two particularly significant decisions.

-In Schultz v. State Police, the GRC determined that autopsy reports are not covered by OPRA’s exemption for criminal investigatory records. This question has never been addressed by the New Jersey courts.

-The GRC also decided another issue yet to be addressed by the courts–whether OPRA covers text messages. As discussed here, it determined that texts fall under the statute’s definition of a “government record,” as information that is stored or maintained electronically. The GRC said that texts are “fundamentally similar” to emails, because they are electronic communications.

Court Confirms That An OPRA Custodian Is Not A Reference Librarian

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In its recent opinion in Lagerkvist v. Office of the Governor, the Appellate Division rejected the notion that a records custodian is required to work with the requestor to turn an invalid request into a proper request that will result in providing the information sought by the requestor.

The courts have long held that OPRA does not permit overbroad requests that require the custodian to perform research. The request in Lagerkvist was denied for this reason. On appeal, the requestor argued that if the custodian rejects a request as overbroad, the statute obligates him to work with the requestor to refashion the request into one that properly asks for specific, identifiable records. Under this interpretation of OPRA, the task of a custodian is to be like a reference librarian, and make suggestions that will aid a requestor’s research project.

The Appellate Division firmly rejected this position. The court stated that OPRA contains no such requirement. The statute spells out the custodian’s duties in N.J.S.A. 47:1A-5g, and nothing there indicates that the custodian must assist the requestor with his research. The statute limits the custodian’s duties to finding and releasing the specific records requested. Quoting a 2014 Appellate Division opinion, the court emphasized that there is “no legal basis to expand the custodian’s role beyond what the Legislature specifically described in N.J.S.A. 47:1A-5g.”

The court’s refusal to add a new duty to the custodian’s obligations is crucial, in view of the heavy workload already shouldered by custodians in dealing with the high volume of valid OPRA requests.