The Supreme Court announced today that it will review the requestor’s appeal in North Jersey Media v. Lyndhurst, in which the Appellate Division determined that almost every record connected with a criminal investigation is confidential under OPRA.

As I’ve previously noted, the Lyndhurst matter is a seminal case. The Supreme Court has never before reviewed OPRA’s exemption for criminal investigatory records.

Press articles about the case (including this one authored by the attorney for the requestor) have focused on one aspect, the holding that police motor vehicle recordings are covered by OPRA’s criminal investigatory records exemption. But it’s important to understand that the case actually involves many other critical law enforcement records, including CAD reports, log book notations, vehicle logs, activity logs, daily statistical sheets, daily bulletins, and all other police reports, such as incident reports, operations reports and investigation reports–in short, all of the records that are routinely part of an investigation.

Only a few weeks ago, I discussed an Appellate Division opinion ordering disclosure of criminal investigatory records from a closed investigation under the common law right of access, even though the records were held confidential under OPRA. Today the Appellate Division issued a similar ruling in a different case.

This matter involved a request for the records of the Warren Prosecutor’s Office’s investigation into the possible misuse of County-owned equipment by county jail officers. The trial judge upheld the denial of access to these records under OPRA, and the requestor did not appeal this ruling. The trial judge ordered disclosure of some of the records under the common law.

The Appellate Division affirmed the common law decision. Unfortunately, its opinion contains neither a description of most of the records ordered released nor a discussion of why the court determined that the disclosure interest in these records outweighed the confidentiality interest applicable to criminal investigatory records. The Appellate Division simply said that the trial judge properly balanced the competing interests, leaving custodians with no guidance as to how to assess future common law requests for criminal investigative files.

However, the opinion is helpful in showing that the court appreciates that the common law does not override the privacy interests of people involved in criminal investigations. The Appellate Division affirmed the trial court’s order that the names and identifying information of witnesses be redacted. According to the appellate court, this addressed the confidentiality and privacy concerns raised here.

The bottom line: when a common law request is made for records of a closed criminal investigation, a court may order disclosure of some of the records, but probably not those that involve privacy interests or other privileged material.

As discussed here, the Gilleran Supreme Court case is extremely important, because it involves the Court’s first review of OPRA’s security exemptions. And the case also gives the Court the opportunity to decide another significant OPRA issue–the meaning of the statutory provision allowing a custodian to deny a request that would “substantially disrupt agency operations.” N.J.S.A. 47:1A-5g.

Although some court opinions have mentioned this provision, no opinion has definitively interpreted it. In my experience, determining whether a particular request is substantially disruptive is one of the most difficult issues facing public bodies. In the absence of standards set forth in the statute or by a court, agencies struggle to decide whether they are legally obligated to devote an extensive amount of time and resources to answer a request.

The request at issue in Gilleran is  a clear example of a substantially disruptive request. The Appellate Division declined to resolve the case on this basis, but it acknowledged that Gilleran’s request, for 14 hours of video footage, was “unreasonably burdensome,” “virtually impossible to accomplish without devoting the time and services of multiple employees,” and not within OPRA’s contemplation. It would appear that Gilleran’s request is precisely the kind of request that the statute’s substantial disruption language is directed at.

Presumably, the Supreme Court, in reviewing a case presenting such an invalid request, will not ignore the necessity of addressing the substantial disruption issue. The validity of an OPRA request must always be resolved at the outset; OPRA does not require custodians to attempt to answer requests that are “unreasonably burdensome” (in the words of the Appellate Division here) or otherwise invalid.

In this case, the Supreme Court needs to decide at the outset whether Gilleran’s request, and similar requests for surveillance camera recordings, are invalid under OPRA’s substantial disruption provision. Such a decision will provide crucial guidance to agencies that goes far beyond the issue of access to surveillance footage–agencies are often confronted with many different types of massive OPRA requests that may substantially disrupt operations.

A recent Appellate Division opinion serves as a reminder that OPRA’s exemption for criminal investigatory records is not dispositive of a civil litigant’s discovery request for such records. The court reaffirmed the well-established principle that a civil litigant may obtain discovery of criminal investigatory records, if he can prove that his need for the information for the litigation outweighs the strong confidentiality interest that covers these records.

In Varnelas v. Morris County School District, plaintiff sued various defendants over the tragic suicide of her son, allegedly caused by bullying and assaults committed by two juveniles and an adult, Michael Conway. The Morris County Prosecutor’s Office had investigated and indicted Conway. In connection with the civil action, plaintiff issued a discovery subpoena to the Prosecutor’s Office for its investigatory file on Conway. The Prosecutor’s Office refused to comply with the subpoena, based on OPRA’s exemption for criminal investigatory records.

The Appellate Division stated that OPRA’s exemption does not forbid production of the records when they are sought for civil discovery. Instead, the common law balancing of needs test applies to the litigant’s request. The Appellate Division remanded the case for the trial judge to apply the balancing test to determine whether plaintiff’s need for the information in the records outweighed the confidentiality interest here.

This opinion breaks no new ground, as the law is clear that civil litigants can potentially obtain discovery of OPRA-exempt records, depending on the outcome of the balancing test. Still, it’s a useful reminder that trial judges must engage in a careful evaluation of the confidentiality and litigation interests at stake before granting a discovery request for such a record.

I’ve noted previously that agencies face the risk that a judge will order disclosure of law enforcement records under the common law right of access, even where those records are confidential under OPRA. See part 3 of this post. The Appellate Division issued such an order yesterday, in an unpublished opinion involving documents in a Division of Criminal Justice (DCJ) investigatory file.

In Lagerkvist v. State of N.J., the plaintiff made an OPRA and common law request for the records of DCJ’s investigation into alleged “double-dipping” pension violations by three individuals in different county sheriff’s offices. The trial judge upheld the denial of the OPRA request, but ordered the release of a few of the documents in the investigatory file under the common law balancing test. The judge also rejected plaintiff’s common law claim as to three documents, and plaintiff appealed that ruling.

The Appellate Division disagreed with the ruling that two of the documents were entirely confidential. In reversing the trial court as to these two records, it emphasized that the investigation was closed and that the documents contained no information about investigative techniques or the agency’s deliberative process. However, the appellate court recognized that some of the information in the documents might be confidential, and remanded the case for this issue to be considered by the trial court.

The Appellate Division did uphold the complete confidentiality of the third record, an internal DCJ memo found to be covered by the deliberative process privilege.

The fact-specific nature of this opinion makes it of little value for guidance in handling future cases. But as mentioned, it’s a reminder that because of the common law right of access to records, agencies may be required to disclose certain records that are confidential under OPRA.