Category Archives: Court opinions

An Important Appellate Division Opinion: OPRA Requests For Information From A Database May Only Be Made To The Agency That Maintains The Database

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Today the Appellate Division issued a published opinion that resolves a longstanding question: is an agency that has access to another agency’s database, but is not the custodian of that system, required to answer OPRA requests for information in the database? In this case of first impression, the court held that the answer is no.

In Simmons v. Mercado, the requestors sought from the Millville Police Department DWI, drug possession, and drug paraphernalia complaints and summonses. The request was denied on the basis that the police do not maintain these records; instead, they enter information into the Judiciary’s Electronic Complaint Disposition Record (eCDR) system, which generates complaints and summonses and is the repository of these records.

The trial judge ruled against the department, reasoning that it has access to the eCDR system and so must fulfill the OPRA request.

The Appellate Division firmly rejected this view. It held that the records in the CDR system are the records of the Judiciary, not the police department, and therefore the department is not the custodian of these records under OPRA. The fact that the police are required to input some information into this system does not make it a record of the police department for purposes of OPRA. Moreover, said the court, that the police have access to this system does not change the fact that the Judiciary maintains it. The court concluded that the request here should have been directed to the Judiciary, not the police department.

The Appellate Division’s ruling is highly significant. It affects many agencies, not just police departments. There are many situations where State and local agencies must submit information into electronic databases maintained by other agencies, and they often have access to these other agencies’ systems. As in Simmons, OPRA requests are often directed to the agency that is not the custodian of the database, but has access to it, raising the question of whether the agency must satisfy the request. The court has now issued a clear standard that resolves this problematic situation.

A Major OPRA Ruling: Home Addresses Must Be Disclosed

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Since OPRA’s enactment, custodians have struggled with the unsettled question of whether a person’s home address is confidential, under the exemption for the reasonable expectation of privacy. This issue comes up in many OPRA requests; one that frequently recurs is a request for the names and addresses of people who submitted pet license applications to municipalities. The Appellate Division has now issued a definitive, precedential opinion on this issue, holding that the home addresses on these licensing records must be disclosed. Bozzi v. Roselle Park.

The requestor in this case, an installer of invisible dog fences, requested the names and home addresses of municipal residents from their dog licenses. Previous cases addressing this type of OPRA request have differed on whether the individual’s privacy interest in this information outweighed the need for its disclosure. However, in Bozzi the Appellate Division held that OPRA’s privacy exemption does not ever apply in this situation, because people have no reasonable expectation of privacy in their name and address information when they apply for a dog license.

The court’s holding is significant, in that it resolves the longstanding question of whether municipalities must grant access to addresses found in pet license records. But the opinion is of even greater importance because it affects all OPRA requests pertaining to home addresses. The court went beyond the specific issue of addresses in dog license records, and stated, for the first time in a precedential opinion, that the Legislature, in OPRA, did not intend to block disclosure of names and home addresses in any government record.

Although this portion of the opinion may be dicta, the Appellate Division’s direction is unambiguous: OPRA requests for records that disclose a person’s name and address should be granted.

New Precedential Appellate Division Opinion: Use of Force Reports Involving Juveniles Are Not Exempt Under OPRA

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The Appellate Division recently held, in a case of first impression, that Use of Force Reports (UFRs) involving juveniles must be disclosed under OPRA, with redaction of the name of the juvenile. Digital First Media v. Ewing Tp.

The OPRA request sought UFRs from Ewing Township in connection with the arrest of a minor. Ewing denied the request, taking the position that the UFR was a juvenile record and therefore was completely confidential. The court rejected this argument. It determined, consistent with the position of the Attorney General, that disclosure of the UFR, with redaction of the juvenile’s identity, satisfies the laws mandating preservation of a juvenile’s confidentiality.

This is clearly the correct result. UFRs are public records under OPRA. If a portion of a UFR contains confidential information, that does not make the entire record exempt; instead, that part of the record should be redacted, as OPRA requires with regard to all other publicly-accessible records.

Appellate Division Rejects OPRA Privacy Exemption Claim

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A recent Appellate Division opinion in an OPRA case surprisingly rejected an appropriate effort by a public body to protect individuals’ privacy interests. Frega v. Boro of Saddle River.

The Borough of Saddle River approved a “deer cull” for the 2018-19 hunting season. The requestor, who was opposed to the deer cull, submitted an OPRA request for the names of the hunters who would be participating, as well as the addresses of properties on which the hunting was authorized.

The Boro denied the request under OPRA’s privacy exemption, due to threats that had been made against supporters of the deer cull. The record showed that people opposed to the cull had made various threatening statements toward Boro officials for their decision to allow it; for example, one Facebook post said, “They are sick and disgusting people . . . Now is the time to stop . . . . Everyone would like to beat the hell out of the entire bunch of them . . . they will get it back in spades. . . . Watch . . . . people are very upset.”

The Appellate Division upheld the trial judge’s decision rejecting the privacy argument. The court determined that individuals participating in the deer hunt had no colorable claim of privacy. It concluded that this case presented the same situation as in Brennan v. Bergen Prosecutor, where the Supreme Court said that a public auction, held by a public body, is a “quintessential public event,” and therefore bidders at such an auction have no reasonable expectation of privacy under OPRA. Unfortunately, the Frega court did not explain how hunting in a deer cull that the government has approved is the same as bidding on property at a government-run auction.

The Appellate Division also concluded that the requestor’s interest in obtaining the names of participants in the deer cull outweighed the affected individuals’ privacy interests. The court determined that they had no real privacy interest, because the risk of harm to these individuals was speculative.

The idea that the potential harm here was too speculative to warrant protection under OPRA strikes me as untenable, in view of the many threats of violence that were in the record. The court downplayed these menacing comments as simply “hyperbolic expressions of animosity toward the practice of hunting.” But that’s exactly why there was a genuine risk of harm from disclosure of hunters’ identities: it’s reasonable to assume that this extreme anger at the practice of hunting will be directed at the individuals who actually engage in the hunting.

Moreover, there appears to be no legitimate reason for the requestor to obtain the names of hunters. The opinion says only that the requestor needs this information to inform herself about the efficacy and risks of the deer hunt, without explaining how having participants’ names serves this purpose. In my view, the privacy balancing test clearly favors withholding the hunters’ names.

The Appellate Division’s opinion is not precedential. However, it’s another example of the problems faced by public bodies in attempting to comply with OPRA’s mandate that they protect citizens’ legitimate privacy interests.

Judicial Guidance Needed: What’s A Reasonable Search For Responsive Records Under OPRA?

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The law is clear that a custodian must make a reasonable search for records that are responsive to an OPRA request. However, there’s no law that defines what constitutes a reasonable search, and there are no court cases that provide guidance as to what a custodian must do to satisfy the reasonable search requirement.

The absence of standards governing searches leads to unnecessary, wasteful litigation. A recent Appellate Division opinion illustrates this problem. In Lawyers Comm. for 9/11 Inquiry v. State Police, the requestor asked the State Police for records related to the FBI’s investigation of a suspicious van in East Rutherford during the afternoon of September 11, 2001. The State Police denied the requests on the basis that it had no responsive records.

The requestor challenged this denial in the Law Division, claiming that the State Police did not make a sufficient search for records. In the trial court, the State Police submitted certifications from three officers, who explained how and where they searched, and stated that they found no responsive records. For reasons not described in the Appellate Division opinion, the trial judge required the State Police to submit additional certifications further detailing the search for records. The trial judge ultimately ruled that the State Police made a reasonable search and had “looked in the most logical places where anything related to the 9/11 inquiry would be.”

The Appellate Division affirmed. It noted that the requestor offered nothing but speculation in response to the State Police’s certifications, and that its argument that the search was improper lacked sufficient merit to warrant further discussion.

As can be seen, even though the requestor had no basis to indicate that the search was unreasonable, the agency still had to go to great lengths to prove to the court that its search was reasonable. If there were case law providing guidance as to what is a reasonable search, this matter might have been resolved without litigation. But in the absence of such standards, the requestor felt free to pursue litigation, in both the trial and appellate courts, despite lacking a basis for claiming that the State Police failed to make a legally proper search.

Appellate Division Holds, For The First Time, That Police Body Camera Footage Is Not Exempt As Criminal Investigatory Record

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In an opinion issued today, the Appellate Division held that police body-worn camera footage does not fall within OPRA’s criminal investigatory records exemption. Rivera v. Tp. of Bloomfield.

This exemption applies only to a record pertaining to a criminal investigation that is not required by law to be made, maintained or kept on file. The footage here pertained to a criminal investigation into a 2017 police shooting, but the Appellate Division determined that the “not required by law” prong of the exemption was not satisfied. The court said that an Attorney General Law Enforcement Directive governing police body cameras constituted such a requirement of law, in accordance with Supreme Court OPRA precedent.

Although this is the first appellate opinion to address the important issue of OPRA requests for body camera video, the opinion is unpublished and therefore not precedential. Perhaps the court saw no need to publish the opinion because the law is settled that Attorney General directives have the force of law under OPRA, and the body camera directive clearly requires that footage be made, maintained and kept on file.

It’s important to note that the court did indicate that body camera footage may be withheld, under appropriate circumstances, even though the criminal investigatory exemption does not apply. The pertinent AG Directive gives the prosecutor the discretion to determine, on a case-by-case basis, that law enforcement interests require maintaining confidentiality of the video. However, in this case, according to the court, the prosecutor did not explain the need to maintain confidentiality.

The 10 Most Important OPRA Court Opinions Of The Decade

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Inspired by the countless lists that have been published recently of the past decade’s best books, movies, TV shows, etc., here’s my list of the most important OPRA opinions issued over the decade.

  1. North Jersey Media Group v. Lyndhurst Tp. (Supreme Court)–this landmark opinion governs access to virtually all law enforcement records and establishes how to apply the exemptions for criminal investigatory records and investigations in progress.

2. Paff v. Galloway Tp. (Supreme Court)–resolved an issue that comes up frequently, holding that OPRA requires public bodies to produce requested reports from information in electronic databases. In addition, for the first time, the Supreme Court adopted the “MAG rule” of the Appellate Division, confirming that OPRA requests requiring research and analysis are invalid.

3. Kovalcik v. Somerset Prosecutor’s Office (Supreme Court)–this opinion established two critically important principles: (1) OPRA’s personnel exemption is construed in favor of protecting the confidentiality of personnel information; and (2) the fact that the requestor has the ability, in pending litigation, to obtain discovery does not affect the requestor’s ability to file an OPRA request.

4. North Jersey Media v. Governor’s Office (App. Div.)–departing from what had been the standard practice, that only the GRC could impose OPRA’s penalties, the court held that trial judges have the authority to impose fines on public officials who violate OPRA.

5. Gilleran v. Bloomfield Tp. (Supreme Court)–the Court addressed OPRA’s security exemptions for the first time since OPRA’s enactment, and held that they bar release of building surveillance videos.

6. Matter of State Firemens Ass’n (Supreme Court)–two important holdings: (1) public bodies may not file OPRA declaratory judgment actions prior to answering requests; (2) OPRA’s privacy exemption covers information about an individual’s receipt of financial assistance.

7. L.R. v. Camden (Supreme Court)–held that OPRA cannot be used to obtain access to student records.

8. North Jersey Media v. Bergen County Prosecutor (App. Div.)–upheld the validity of the “Glomar” response to OPRA requests; to protect the confidentiality of investigations, an investigating agency may respond to a request concerning an investigation by stating it neither confirms nor denies the existence of responsive records.

9. Scheeler v. Atlantic County Mun. JIF (App. Div.)–held that the right to request records under OPRA is not limited to citizens or residents of New Jersey.

10. Ciesla v. Dept. of Health and Libertarians for Transparent Govt. v. GRC (both App. Div.)–these two appellate opinions make clear that all draft documents are entirely exempt.

The Appellate Division Reiterates A Basic Rule: A Custodian Is Not A Researcher Under OPRA

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It’s a well-settled rule that an OPRA request requiring research by the custodian is invalid, but requestors nevertheless keep filing these kind of requests. In an opinion issued today, the Appellate Division, as it has done on many occasions, upheld the denial of a request on this basis. Carter v. Dept. of Community Affairs (unpublished).

The request in this case was a textbook example of an invalid research request. The requestor sought

“copies of any and all ‘Notice of Docketing’ records issued by the New Jersey Superior Court, Appellate Division, resulting from an appeal (pursuant to N.J.S.A. 40A:9-22.91) of any final [agency] decision of the Local Finance Board [(LFB)] from August 9, 2011 through August 9, 2016.”

The Appellate Division agreed with the GRC that this is not a valid request. Because the request did not identify specific cases, it required the custodian to find out from other agencies what cases might be covered, locate these case files, and then analyze the case files to attempt to figure out if they contained relevant records. OPRA simply does not require records custodians to perform such research and analysis.

Appellate Division Again Holds Police Internal Affairs Records Are Exempt Under OPRA

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Requestors often seek access to police department internal affairs records, but the courts and the GRC have consistently held that these records are exempt under OPRA. See this post, and also this one, for some examples. In an unpublished opinion issued today, the Appellate Division once again turned away an effort to make internal affairs files public. Doe v. City of Trenton.

The court held that these records are exempt because the Attorney General’s Internal Affairs Policy and Procedure makes them confidential and exempt from public disclosure. The court did not engage in additional analysis, presumably because the confidentiality of internal affairs records is so well-settled.

Appellate Division Declines to Address Whether a Court May Issue Injunctive Relief Against a Requestor Who Submits An Excessive Number of Requests

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Trial judges have the ability to issue injunctive relief against requestors who file an unreasonable number of requests. See this post for an example. However, there’s no precedential appellate opinion, under OPRA, that confirms this principle.

The appeal in Teaneck v. Jones appeared to be the case that might generate such an opinion. It involved a requestor who submitted an extraordinarily large number of requests to Teaneck in a short time frame, in an obvious effort to harass the township. Despite this, the trial judge rejected Teaneck’s application for an injunction that would excuse it from answering Jones’ requests.

Teaneck appealed, but the Appellate Division, in an unpublished opinion issued today, declined to address the injunction issue because it was moot. The opinion indicates that after the trial judge’s ruling, the requestor and Teaneck worked out a resolution, and the Township answered a number of Jones’ requests. As a result, the appellate court said it could grant no effective relief by deciding whether an injunction should have been issued.