Category Archives: Court opinions

OPRA’s Fines Can Be Imposed On Any Public Official

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A recent Appellate Division opinion is a reminder that it’s not just record custodians who face the risk of a $1000 fine for violating OPRA; any public employee, appointee or elected official may be penalized.

The issue actually addressed in the case, Johnson v. Boro of Oceanport, was whether the official had waited too long to ask for reconsideration of the GRC decision that fined him $1000. The court held that the request, made 55 months after the decision, was grossly late and therefore the agency properly refused to consider it.

The more important aspect of this opinion, for all New Jersey public employees and officials, is that the person who was fined for violating OPRA was a Borough councilman. The councilman’s violation was that he failed to respond to several requests made by the custodian for records responsive to an OPRA request.

In prior posts, I’ve highlighted the costs to the government of failing to comply with OPRA. Government officials and employees should not overlook that there are significant potential personal costs of noncompliance as well.

 

 

How Not To Handle A Third Party’s Claim That A Record Is Confidential

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In Collingswood Bd. of Ed. v. McLoughlin, the Board of Education confronted an OPRA issue that often comes up: how to handle an OPRA request for a record that appears to be a public record, but a third party claims that it is confidential.

The record in question was an investigatory report concerning the Board’s decision not to reappoint a coach, Joseph McLoughlin. McLoughlin notified the Board that his position was that the report was not a government record and that he would file suit to prevent its release. However, without waiting for such a suit to be brought, the Board filed a declaratory judgment action seeking a judgment that the report was a public record. Its own complaint stated that the report was disclosable under OPRA. The trial court agreed that the record had to be disclosed under OPRA.

The Appellate Division held that under the In Re Firemens Assn. opinion, a custodian may not file an OPRA declaratory judgment action, and it remanded to the trial court to calculate an additional attorney fee award that would cover the time spent by the requestors in litigating the declaratory judgment action.

This attorney fee award could have been avoided. As I’ve previously discussed (see this post), when a third party claims a confidentiality interest in a document that the custodian believes must be released under OPRA, the custodian should advise the party that the record will be released by a certain date, in order to give this party the opportunity to initiate legal action to prevent disclosure.

Following this procedure ensures that the litigation over the record, if any, is between the requestor and the party that actually claims confidentiality, and minimizes the litigation costs of the public body.

 

Appellate Division: OPRA Allows Agencies To Give The Glomar Response To Requests

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In an important opinion, the Appellate Division held yesterday, for the first time under OPRA, that an agency may decline to confirm or deny the existence of responsive records in answering a request for records concerning a person who has not been charged with a crime. North Jersey Media v. Bergen County Prosecutor’s Office.

As I explained in this post, this approach (known as the “Glomar” response) has long been permitted under FOIA as a way to avoid the disclosure of exempt, sensitive information, such as whether an individual was or is under investigation. The Appellate Division held that OPRA allows the “neither confirm nor deny” response for the same reason.

Specifically, the court said that OPRA’s exemption for a grant of confidentiality recognized by case law (N.J.S.A. 47:1A-9b) applies here. The court found that case law has long recognized the need for confidentiality of investigative records regarding a person who has not been arrested or charged.

 

 

 

Summer 2016 OPRA Court Opinions

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Summer is typically a slow period for the New Jersey courts, but since Memorial Day of this year, there have been several important OPRA opinions and orders.

The Appellate Division issued a significant, published opinion in June. In Paff v. Ocean County Prosecutor, the court held that police vehicle dashcams are not covered by OPRA’s criminal investigatory exemption. The court also held that OPRA’s privacy exemption did not apply to drivers and passengers shown in these videos. As discussed here, this case is likely headed to the Supreme Court.

The Appellate Division also issued a few unpublished opinions that dealt with important OPRA topics:

–North Jersey Media v. NJ Dept. of Law and Public Safety (names of State employees who seek legal representation or indemnification from the Attorney General are exempt)

–NY Public Radio v. Gov. Office (outside activity records of public employees are exempt under OPRA and not disclosable under common law)

–Brennan v. Bergen County Prosecutor (names and addresses of bidders at auction of sports memorabilia held exempt under privacy exemption)

In addition, during the summer the Supreme Court granted review in two OPRA cases:

–Paff v. Galloway Twp. (whether OPRA requires public bodies to produce requested reports from the information contained in computer databases)

–Verry v. Franklin Fire Dist. (whether a volunteer fire company that is a member of a Fire District is subject to OPRA)

 

Appellate Division: Identities of Attorney’s Clients Are Exempt under OPRA

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The Appellate Division held today that the Attorney General properly denied a request for the names of State employees who sought legal representation or indemnification in connection with the Bridgegate investigations. North Jersey Media v. State Dept. of Law and Public Safety. The opinion is unpublished, even though no court has previously addressed the issue of whether OPRA requires disclosure of the identity of a government attorney’s client.

The court held that this information is confidential under the attorney-client privilege as well as the Rules of Professional Conduct. Communications between State employees and the Attorney General’s Office concerning legal representation matters are covered by the attorney-client privilege. Also, the court said that the OPRA request was properly denied because R.P.C. 1.6 provides that client identity is confidential.

The Appellate Division also reversed the trial court’s award of attorney fees to the requestor. The court ruled that although the Attorney General’s Office had provided certain other records to the requestor, the release of these records was not caused by the OPRA suit.

The attorney fee ruling is notable only with regard to the amount of fees involved–over $57,000 for the trial court litigation alone. This shows, as I’ve previously discussed, that OPRA matters can potentially generate substantial attorney fee awards against public bodies.

Appellate Division Again Rejects The Claim That A Custodian Must Perform Research

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Even though the law is clearly settled that OPRA does not require a custodian to conduct research in order to answer a request, requestors continue to make this demand. In an unpublished opinion issued today, Branin v. Collingswood Boro Custodian, the Appellate Division once again rejected a requestor’s argument that the custodian should have performed research to find the documents sought.

In Branin, the requestor asked for the settlement agreement in certain litigation. There was no such document. The court stated that the custodian could have figured out the terms resolving the litigation by researching documents in the Borough solicitor’s litigation file, and having the solicitor explain the significance of various documents. But, the court stated flatly, “OPRA does not require such research.”

Appellate Division Upholds Confidentiality of Employee Outside Activity Records

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It’s clear that outside activity records of public employees are exempt under OPRA. In an unpublished opinion issued today, the Appellate Division emphasized that these records also are typically not accessible under the common law. New York Public Radio v. Gov. Office.

The requestor in this case sought outside activity notifications submitted to the Governor’s Office’s ethics liaison officer. The trial judge ruled that these are exempt under OPRA because they are personnel records, but ordered disclosure under the common law. The Appellate Division disagreed. It held that the significant privacy interest of employees in their outside activities  outweighs the limited public interest in disclosure of this information.

The court also noted the importance of maintaining the confidentiality of ethics communications, to ensure that public employees will not be deterred from making such inquiries.

The Appellate Division also dealt with a separate OPRA request that presented the issue of whether the deliberative process privilege applied to a “Town Priority List” used by the Governor’s Office. The appellate court again reversed the trial court’s disclosure order. It ruled that this list was covered by the deliberative process privilege, in that it was a key component of the Governor’s Office’s decisionmaking process regarding allocation of resources.

 

Appellate Division Upholds Privacy Of Home Addresses

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Over the past week, the Appellate Division has issued two OPRA opinions with strikingly different views of individuals’ privacy rights. The Appellate Division’s recent police dashcam video opinion,  discussed here, dealt a blow to privacy interests in ruling that people shown in such videos have no reasonable expectation of privacy. A few days later, a different Appellate Division panel upheld privacy rights in concluding that home addresses may be entitled to privacy protection under OPRA. Brennan v. Bergen County Prosecutor’s Office.

The issue in the case was whether Bergen County had to disclose the names and addresses of people who bid at an auction of sports memorabilia held by the County. (The memorabilia had been seized from an individual by the prosecutor’s office). The documents showing the names and addresses were non-exempt government records, but the court held that OPRA’s privacy provision rendered this personal information confidential.

The court said that the bidders had a reasonable expectation that their names and addresses would be private. Notably, the court rejected the argument typically expressed by requestors seeking home addresses, that there’s no privacy interest because home addresses are publicly available. The court emphasized that there is a strong privacy interest when name and address is linked with other information about an individual; in this case, the additional information was that the person bought memorabilia, indicating that he may have a valuable collection. The court determined that the bidders had a genuine concern that they could become the targets of theft.

The court also noted another significant factor favoring privacy: the absence of confidentiality would deter bidders from entering an auction, thereby harming governments’ abilities to hold auctions to generate income.

The court concluded that these confidentiality factors outweighed the requestor’s limited interest in disclosure of the names and addresses. The panel reached the same result with regard to the common law claim for disclosure of this information.

As this blog has previously noted, there is little case law guidance on whether home addresses are protected under OPRA. Although the Brennan opinion is unpublished, it is still an extremely important case in showing that home addresses are entitled to privacy protection.

Appellate Division’s New Dashcam Opinion: A Blow To Privacy Rights

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The Appellate Division’s recent opinion in Paff v. Ocean County Prosecutor, requiring disclosure of police dashcam videos, turns primarily on whether such videos are criminal investigatory records under OPRA. But the court also held that the footage requested could not be withheld to protect the privacy interests of the people in the video. The court showed surprisingly little regard for citizens’ privacy rights in reaching this conclusion.

The key to the privacy ruling was the court’s determination that “[d]rivers and passengers in vehicles operating on public roadways do not have a reasonable expectation of privacy in an MVR recording.” This is simply incorrect–surely drivers and other individuals have a reasonable expectation that their conversations with a police officer will be private, and will not be available to be placed on YouTube for anyone to view.

The court said that there is no harm caused by widespread disclosure of these videos because the public has a right to see them under OPRA. This statement begs the question that must be decided whenever a privacy interest is at stake: whether a person’s reasonable expectation of privacy regarding the specific record outweighs the need for public access to that record. OPRA’s privacy requirement is meaningless if, as the court suggested, there can be no harm caused by the disclosure of a government record.

These statements by the Appellate Division effectively mean that a valid privacy claim cannot be made when there is an OPRA request for a dashcam video. Hopefully, when the Supreme Court reviews this case, it will correct this unfortunate restriction on privacy rights.

 

 

Appellate Division: Police Dashcams Are Not Exempt Criminal Investigatory Records

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The Appellate Division ruled today that police vehicle camera videos are not exempt criminal investigatory records under OPRA. Paff v. Ocean County Prosecutor. However, this opinion has little precedential impact, because there are conflicting Appellate Division opinions on the issue of whether such videos must be disclosed. In addition, this question will be resolved by the Supreme Court, perhaps by the end of this year.

The appellate court’s conclusion that criminal investigatory exemption did not apply rested on its determination that the police dashcam recordings were required by law to be made, maintained or kept, based on the fact that the township police chief had ordered all officers to activate their vehicle’s mobile recording device when making a traffic stop. The court specifically noted that its analysis and holding conflicted with that of the Appellate Division’s Lyndhurst opinion, where different appellate judges said that police vehicle videos are criminal investigatory records and are not required by law to be made, maintained or kept.

One member of the 3-judge panel in the Paff case, Judge Gilson, filed a dissenting opinion. The judge determined that the police chief’s order did not meet the “required by law” standard.

When there is a dissent, the losing party has an automatic right of appeal to the Supreme Court. I have no doubt that the prosecutor’s office will appeal, meaning that the Supreme Court will resolve whether the recordings are exempt.

And even before taking up the appeal in Paff, the Supreme Court may resolve the question in its consideration of the Lyndhurst case. That appeal has been pending with the Supreme Court since  December 2015, so the Court is likely to issue an opinion around the end of 2016.

Due to the conflicting Appellate Division opinions, until the Supreme Court rules, there will be no clear answer as to whether OPRA requests for dashcam recordings must be granted.