OPRA litigation, in both court and the GRC, often involves the question of whether the public body did an adequate search for responsive records. When this issue is raised, the custodian, and any other employees involved, may have to submit a certification detailing how they conducted the search. Although this seems to be a straightforward requirement, a recent Appellate Division case shows that some public bodies do not fully understand how the search must be described.

Carter v. Franklin Fire District 1 involved a GRC case in which the requestor challenged the adequacy of the public body’s search. The custodian’s certifications explained that he had asked various people to search for responsive records, including District employees and its IT vendor. The Appellate Division held that these certifications were deficient because they were not based on his personal knowledge. Because the custodian could not say how the other people conducted their searches, he could not properly certify, based on personal knowledge, as to the process and scope of the searches, and whether all responsive records were in fact produced.

This unpublished opinion does not break any new ground; the Appellate Division held in 2017, in a published opinion, that a similar certification submitted in court litigation describing an OPRA records search was invalid because it was not based on the certifying individual’s personal knowledge. Still, it’s helpful to have a reminder that in OPRA litigation, it’s not sufficient for custodians to describe searches that they were not personally involved in.

The many landmark cases issued in 2017 made that year the most important year in OPRA’s history. Although 2018 did not match that standard, it nevertheless saw many major court rulings on crucial OPRA issues.

The Supreme Court issued two OPRA opinions. Brennan v. Bergen Prosecutor said that bidders at public auctions lack a reasonable expectation of privacy in their names and addresses. Paff v. Ocean Prosecutor also dealt with OPRA’s privacy exemption, with regard to police dashcam videos, and in addition held that these videos are exempt criminal investigatory records.

The Appellate Division issued several important published opinions on a variety of OPRA topics, including the right of nonresidents of New Jersey to make OPRA requests; the confidentiality of student records; the confidentiality of draft meeting minutes; and attorney fees.

And as in previous years, OPRA litigation resulted in a large number of non-precedential decisions that people who deal with OPRA need to know about. In 2018, the Appellate Division ruled on a number of meaningful OPRA matters in unpublished opinions.

A recent unpublished Appellate Division opinion is a reminder of a fundamental OPRA rule: OPRA applies only to records made, maintained, kept or received in the course of official business. As a result, emails sent over a government computer, that don’t involve government business, are not subject to OPRA.

The Appellate Division case dealt with an OPRA request for emails exchanged between certain government officials concerning PAC money. Carter v. Franklin Fire Dist. No. 1. Although the topic of the emails had nothing to do with the official business of the public body, the requestor argued that OPRA applied to these emails because they were maintained in the public body’s computer system. The court rejected this argument; it agreed with the GRC that the OPRA request was not for government records, because the emails did not involve official government business.

Some OPRA requestors abuse the system by burying public bodies under an avalanche of requests. See this post for an example, concerning a requestor who, over two months, submitted 380 requests to Teaneck, seeking nearly every possible category of municipal information.  Despite the obviously harassing nature of this volume of requests, the trial judge declined to issue an injunction to limit this person’s requests, based on the incorrect belief that the law does not authorize judges to take such action.

An Appellate Division opinion issued today shows that trial judges do indeed have the authority to place limits on requestors who submit too many requests. O’Boyle v. DiLorenzo.

O’Boyle submitted almost 900 requests to the borough of Longport over a several month period. The limited staff of this small borough attempted to respond, but the court noted that some employees were overwhelmed by the resulting workload and quit.

The Borough filed an order to show cause to bar O’Boyle from submitting additional document requests. The trial judge ruled that he could continue to submit requests, but also ordered that the Borough was not obligated to respond to any requests within OPRA’s time limit.

O’Boyle later filed suit against the Borough and various individuals, complaining about a number of different actions taken against him. One claim involved the OPRA matter; he argued the Borough violated Equal Protection by denying him his rights under OPRA.

The trial judge dismissed all of O’Boyle’s claims, and the Appellate Division affirmed for the reasons expressed by the trial judge. The court’s opinion does not describe the trial judge’s opinion or explain its legal reasoning. Nevertheless, this appellate case is of interest, in showing that a trial judge can place restrictions on an individual who submits an abusive amount of OPRA requests.