This blog covers both published Appellate Division OPRA opinions as well as interesting unpublished opinions by the court. Although unpublished opinions often contain guidance about OPRA matters, they are not binding statements of the law. New Jersey law is clear that unpublished Appellate Division opinions are not precedential.

I’ve noticed that over the last few years, the court has issued a number of opinions that deal with significant or new OPRA issues, but unfortunately are unpublished. All of these opinions address important questions that often come up under OPRA, for which there is no precedential case law.

Here are several significant unpublished opinions that were issued in 2017 and 2018:

–Libertarians for Transparent Govt v. Ocean County Prosecutor–underlying reasons for employee’s resignation are confidential.

–Paff v. Bergen County–records of internal affairs investigations are confidential.

-Libertarians for Transp. Govt v. Wm. Paterson U.–settlement records are confidential.

–Kennedy v. Montclair Bus. Improvement Dist.–requestor is not entitled to attorney fees where his litigation does not result in access to records.

–NY Public Radio v. Governor’s Office–confidentiality of various Governor’s Office records

-Scheeler v. NJDCF–employee resumes may be redacted.

In a published, precedential opinion, the Appellate Division held that the right to request records under OPRA is not limited to citizens or residents of New Jersey. Scheeler v. Atlantic County Municipal JIF, etc.

The court’s ruling is consistent with the view I had previously expressed, that OPRA cannot be reasonably interpreted as applying only to citizens of New Jersey. Judge Reisner’s opinion cogently demonstrates that the Legislature did not intend to impose a citizenship requirement; instead, the statute allows any person to make an OPRA request.

In August 2017, the Appellate Division held, for the first time, that trial judges have the authority to impose the financial penalties in OPRA for individuals who knowingly violate the statute. North Jersey Media v. Office of the Governor. This opinion upended the practice that had been followed since OPRA’s enactment, under which only the GRC imposed these fines.

When the opinion was issued, I noted that the Appellate Division’s holding seems incorrect, as it creates the odd (and I think legally invalid) situation where private plaintiffs may file suit for monetary penalties that are to be paid to the State, rather than to the plaintiffs themselves.

The court didn’t address this problem in the North Jersey Media opinion, but the Appellate Division recently agreed with my point; it stated that it is legally improper for private plaintiffs to file Superior Court actions to enforce statutory penalties. Goldman v Critter Control of NJ. This was not an OPRA case, but it dealt with the same issue–whether a private plaintiff could file a trial court complaint for imposition of penalties provided for by a statute.

Like OPRA, the statute in question in Goldman, the Prevention of Cruelty to Animals Act, contains penalties for violations and says that the penalties are to be enforced under the Penalty Enforcement Law. The Goldman court concluded the reference to the penalty enforcement statute means individuals cannot file civil actions for penalties, because that statute’s purpose is to authorize administrative agencies to enforce penalties and have the fines paid to the State Treasury.

The Appellate Division explained, “[i]t would make little sense for plaintiff to be able to file a civil action and then not be able to enforce a judgment or keep any portion of the penalties.”

Yet even though it does not make sense, OPRA plaintiffs are allowed to file suits seeking financial penalties that they do not receive.

The Appellate Division issued a short, unpublished opinion today which resolves a significant and previously-unaddressed question–whether settlement negotiation records of public bodies must be disclosed under OPRA. The court held that William Paterson University properly rejected disclosure of an unfiled and unexecuted draft litigation settlement agreement. Libertarians for Transparent Government v. Wm. Paterson U.

The document in question was an email containing a red-lined version and a clean version of the proposed settlement agreement between the parties. As of the date of the OPRA request, the parties had not agreed upon the language in the red-lined version.

The court stated that until a settlement agreement is signed, it is a draft document, subject to revision and negotiation, and therefore exempt under OPRA. In this case, the settlement was not fully executed until a few weeks after the settlement documents at issue, leading the court to rule that these documents were exempt from disclosure.

Anyone who has ever been involved in litigation would probably consider it obvious that all of the parties’ communications leading up to the final, signed settlement agreement, including drafts of language for the settlement, are confidential. But there are OPRA requestors who do not accept this principle; I’m aware of many OPRA requests that sought to make public the records of litigants’ settlement negotiations.

This claim comes up because there’s no precedential OPRA case law directly stating that public agencies’ settlement negotiation records are exempt records. Unfortunately, because this new Appellate Division is unpublished, there still is no direct precedent. I anticipate that some requestors will continue to assert the frivolous position that they are entitled to disclosure of these records.

The Appellate Division recently issued a precedential OPRA opinion of great significance to all public bodies that hold public meetings. The court ruled that the draft minutes of such a meeting are not government records; the minutes are public records only after the public body approves them. Libertarians for Transparent Govt v. Govt Records Council.

The law is settled that draft documents are deliberative and therefore exempt from disclosure. The appellant in this case argued that the draft minutes of public meetings should be treated differently, based on the idea that they are simply a summary of what occurred at the meeting. The court rejected this position. It stated that the draft minutes are, like any other draft document, the writer’s recommended summary, which the members of the public body may revise and supplement after their review.

The court also emphasized that the entire draft minutes document is confidential, and is not subject to release with partial redactions.