Category Archives: Court opinions

Appellate Division: Litigation Settlements Are Covered By OPRA’s “Immediate Access” Provision

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The Appellate Division recently issued an opinion that will cause problems for custodians. The court ruled, for the first time, that OPRA’s immediate access provision applies to requests for litigation settlements. Scheeler v. Galloway Tp.

The court reversed a GRC decision which had upheld the denial of a request for the settlement agreement on the ground that the settlement had not been finalized at the time of the request. The document in question was entitled “Release and Settlement Agreement” and apparently consisted simply of the litigant’s release of the Township from all claims he may have against it. The rest of the litigation settlement terms were not in writing, but instead were orally agreed to by the parties’ attorneys.

The court disagreed with the GRC that the litigation had not yet been settled at the time of the request. Based on its conclusion that in fact there was a finalized settlement, the court held that the custodian should have disclosed the release.

Notably, the Appellate Division issued a separate ruling, holding that the release should have been disclosed immediately, under the section of OPRA requiring that immediate access be given to certain information held by public bodies, such as budgets, contracts, bills and employee salaries. The court said that because a release of litigation claims is a contract, this type of document is covered by the “immediate access” requirement.

As a result, even though the custodian provided the release to the requestor within 7 business days, the court held that the custodian unlawfully denied access by not providing it immediately.

No court had ever addressed previously whether a litigation settlement is the type of contract that is subject to OPRA’s “immediate access” section. As I’ll discuss in a future post, I think the Legislature did not intend this statutory provision to apply to settlement agreements.

Although the Scheeler opinion is unpublished, and therefore not binding on other courts, it is binding on the GRC, since the GRC was a party in the case. Consequently, in future cases, the GRC is obligated to hold that a custodian has committed a violation if a request for a settlement agreement is not fulfilled immediately. And as I’ve discussed previously, the GRC takes a hard line on the definition of “immediate access,” so that even a response time of a day or two may be a violation.

I suspect that many custodians will be unable to answer requests for settlement agreements so quickly. Nevertheless, they now face the risk of being penalized by the GRC for violating OPRA in these situations.

 

Precedential Appellate Division Opinion Holds That Student Records Are Not Accessible Under OPRA

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I’ve previously noted the difficult issue of whether OPRA requestors may obtain student records, in light of the privacy accorded to student information by education statutes. The Appellate Division recently answered this question. In a precedential opinion authored by Judge Sabatino, the court said that student records are not accessible under OPRA. L.R. v. Camden City School Dist., etc.

The plaintiffs in this case submitted OPRA requests for records related to special education students from a few school districts, and they indicated that they intended to request these records from every school district in the state. The Appellate Division held that OPRA does not grant public access to these records; instead, it said, the limitations on access to student records contained in the pertinent DOE regulations are controlling.

The court emphasized that anyone requesting such records must comply with the procedures and substantive requirements of the DOE regulations, and it highlighted that student records are not open to everyone; rather, they may be accessed only by the specific entities and individuals listed in these regulations.

The court said it was premature to address any claims for attorney fees made by plaintiffs. This leaves open an interesting question for future cases: given the court’s ruling that the DOE regulation, not OPRA, is the vehicle for obtaining student records, is OPRA’s attorney fee award provision applicable in the event of litigation over access to student records?

Appellate Division: Trial Judges Are Authorized To Impose OPRA’s Fines

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The Appellate Division recently held, for the first time, that trial judges have the authority to impose the financial penalties set forth 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.

This is a very unfavorable ruling for public entities. As discussed here, allowing requestors to bring penalty claims in trial court actions will dramatically increase the risks and costs for public agencies in litigating OPRA cases.

The Appellate Division’s conclusion that OPRA permits requestors to file court complaints demanding that public officials be fined strikes me as incorrect. It creates the odd situation where private plaintiffs may file suit for monetary penalties that are to be paid to the State, not to the plaintiffs. This appears to be an unconstitutional delegation of the State’s power to private parties.

Presumably, the Attorney General will seek Supreme Court review in this case. But for the foreseeable future, public bodies face litigation not just over whether an OPRA request was properly denied, but also over whether employees involved in that OPRA request should be fined.

 

Appellate Division Rejects Common Law Request For Criminal Investigation Records

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In a recent unpublished opinion, the Appellate Division upheld the denial of a request, made under the common law, for all documents pertaining to a criminal investigation. Paff v. NJ State Police.

The court’s decision is unremarkable; it’s based on the well-settled law that the interest in confidentiality of criminal investigations outweighs a requestor’s general interest in getting information about the investigation. What’s interesting about the case is that it confirms what I’ve previously noted–contrary to the press reports hailing the Supreme Court’s Lyndhurst opinion as requiring transparency of police operations, in fact the Supreme Court’s opinion ensures that there will be less public access to most police records.

The Paff court rejected the requestor’s claim that Lyndhurst compelled disclosure of the records in question. Instead, the Appellate Division said, the Supreme Court made clear that typically, the interest in confidentiality of law enforcement investigatory records outweighs the requestor’s interest in disclosure.

I anticipate that Paff is the first of many cases in which courts will rely on Lyndhurst to reject OPRA and common law efforts to obtain law enforcement records.

 

Two Major Opinions Issued On Same Day

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On August 3d, both the Supreme Court and the Appellate Division issued a major OPRA opinion.

The Supreme Court, in Matter of NJ State Firemens Assn Obligation to Provide Relief Applications, held that public bodies may not file OPRA declaratory judgment actions after denying an OPRA request. The Court left open the possibility that declaratory judgment may be filed by public bodies before the request is denied, but did not decide that question.

The Court also held that the records in question, showing financial relief awards made to needy firefighters, are confidential under OPRA’s privacy provision.

The Appellate Division’s published opinion held, for the first time, that trial judges have the authority to impose the financial penalties set forth in OPRA for individuals who knowingly violate the statute. North Jersey Media v. Office of the Governor.

For more information about the Supreme Court case, see this post, and see here for more information about the Appellate Division case.

Appellate Division Determines That City Of Orange Willfully And Deliberately Violated OPRA

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In an unpublished opinion issued today, the Appellate Division reversed a GRC ruling and held that the City of Orange’s denial of an OPRA request was willful and deliberate. Gordon v. City of Orange.

The GRC had determined that the custodian should not be fined for the incorrect denial of the request, on the ground that there was no knowing and willful violation and unreasonable denial of access. The court, however, concluded that the evidence in the record did not support this finding. The court noted that the City denied the request due to “ongoing litigation,” but in fact there was no litigation. And the court noted that there was no valid basis for denying access to the requested payroll records.

This opinion is unique in OPRA caselaw: this is the first time the Appellate Division has made its own determination that a public body’s violation was knowing and willful, and effectively mandated that the GRC impose  fines on the responsible officials.

This opinion may wind up having an impact on all public officials involved in OPRA matters, by making it more likely that the GRC will impose penalties for OPRA violations. I suspect the GRC will try to avoid appellate reversal in future penalty cases by taking a stricter stance, consistent with the Gordon opinion, in evaluating whether the public body’s conduct was knowing and willful.

New Appellate Division Opinion Addresses The Deliberative Process Privilege

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One of OPRA’s most important exemptions is the deliberative process privilege, often referred to as the “ACD” exemption, i.e., “inter-agency or intra-agency advisory, consultative, or deliberative material” (NJSA 47:1A-1.1). The Appellate Division recently summarized the legal standards governing the deliberative process privilege in the published opinion of Larkins v. Solter.

Although the Larkins case involved a discovery dispute, not an OPRA claim, it is directly applicable to OPRA matters concerning the deliberative process privilege. As the court noted, the deliberative process privilege is one of the exemptions in OPRA. In fact, the court relied primarily on OPRA case law in explaining the requirements of the privilege.

The Appellate Division held that the deliberative process privilege covered the following records of the Office of the State Comptroller (OSC): an internal audit proposal, a planning memo and a risk/priority evaluation. These documents reflected the OSC’s internal, pre-decisional policy recommendations as to what should be audited and how the audit should be performed. These are precisely the kind of records that are confidential under the deliberative process privilege.

Appellate Division Rejects An Overbroad Request

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Public bodies often receive overbroad OPRA requests that don’t identify specific records. These requests are written in the style of discovery interrogatories, demanding all correspondence about a topic, or all correspondence involving various people or entities. The courts have ruled that this type of request is invalid.

The Appellate Division has once again upheld the denial of such an invalid request, in an unpublished opinion, Serringer v. Office of the Governor.

The request sought all correspondence between the Governor’s Office and Choose NJ, Inc. between 1/1/13 and 4/24/15. The court held that this is an invalid blanket request. The court said that the request’s failure to identify the subject matter of the correspondence rendered it improper, as answering the request would have required every employee of the Governor’s Office to search every file and email account for potentially relevant records.

 

Appellate Division: OPRA Suit Was Properly Dismissed Where It Was Filed After Requestor Received Records

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The Appellate Division issued a published opinion today that states what should be self evident: a requestor may not file an OPRA lawsuit for an award of attorney fees after it has received the records requested. Stop & Shop v. County of Bergen.

Stop & Shop submitted a request in 2011 and received various documents. It submitted a similar request in 2014. This time, the County’s response included a few documents that apparently should have been provided in response to the 2011 request. The court’s opinion does not explain why these records were not originally provided.

Stop & Shop filed suit claiming violations of OPRA and the common law and seeking attorney fees. The court held that this action was moot because plaintiff had received the records before it filed the complaint–in short, it had not been denied access to records.

The court rejected Stop & Shop’s argument that it was entitled to attorney fees, on the ground that its litigation was not the catalyst for the production of the documents.

As noted, this opinion was published, meaning it has precedential force. The opinion should serve as a valuable reminder of a principle that some requestors ignore: the purpose of OPRA litigation is to obtain records for the requestor, not simply an award of attorney fees.

An Excellent New Opinion On OPRA Attorney Fee Awards

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OPRA cases often become a battle over attorney fees, with requestors seeking, and often receiving, large fee awards from public bodies. In many cases, requestors try to capitalize on a minor or unintentional mistake by the custodian as the basis for obtaining attorney fees.

An opinion issued today by Camden County Assignment Judge Katz makes clear that requestors are not entitled to receive attorney fees in every situation where the public body errs in responding to the OPRA request. Fees will not be awarded where the requestor unreasonably rushes to court in an effort to obtain such an award. Grieco v. Boro of Haddon Heights.

In this case, the public body provided some documents requested, but didn’t turn over one of them, due to an innocent and understandable mistake–the document “slipped through the cracks” when the custodian had to leave work suddenly due to a family medical emergency. The requestor did not contact the public body about the missing record, and instead filed suit two weeks after receiving the OPRA response. The public body did not realize it had failed to turn over the document until it was sued, and at that point it immediately provided it to the requestor.

The judge ruled that attorney fees should not be awarded in this situation, where the requestor chose litigation over trying to resolve the matter with a simple phone call. In accordance with the Supreme Court’s  opinion in Mason v. Hoboken, the judge said, this kind of uncooperative conduct violates OPRA and requires denial of fees to the plaintiff.

This is not a groundbreaking opinion–as Judge Katz stated, the facts of this case are similar to those in Mason, the 2008 Supreme Court opinion that established the standards governing entitlement to attorney fees under OPRA. Nevertheless, it’s useful to have a reminder from a court that requestors who rush into court are unlikely to obtain attorney fees. And this trial court opinion is published, giving it some precedential weight.