Category Archives: GRC opinions

A Reminder from the GRC: Officials’ Private Calendars are Exempt from Disclosure

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In 2005, the Appellate Division held that an official’s appointment calendar is exempt under OPRA. There’s been no change in the law since this ruling, but requestors still occasionally seek disclosure of this type of calendar.

The GRC recently upheld the denial of such a request, which asked for disclosure of the Outlook calendars of the State Registrar of Vital Statistics. Since is was undisputed that these contained only internal information, rather than public meeting schedules, the GRC held that they were exempt, based on the Appellate Division’s 2005 opinion and the GRC’s 2017 decision in McDonald v. Jersey City (rejecting request for Mayor Fulop’s calendar).

Does A Prolific Records Requestor Actually Exist?

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Over the past several years, the African American Data and Research Institute (AADRI) has filed numerous OPRA requests and litigated many OPRA cases, including several Supreme Court and Appellate Division cases. In all of these matters, attorney Rotimi Owoh represented the AADRI. But a current GRC case, Rotimi Owoh, Esq. o/b/o ADARI v. Bayonne, raises the claim that the AADRI is not a real entity, and instead is actually the alter ego of Mr. Owoh.

This question must be answered to determine whether the AARDI is entitled to an attorney fee award as the prevailing party in the GRC litigation. The requestor prevailed here, as the GRC determined that Bayonne did not properly respond to the OPRA request. However, under fee-shifting statutes such as OPRA, it’s clear that an attorney who litigates on behalf of himself, instead of representing a separate client, may not receive an award of attorney fees. In the GRC case, Bayonne argues that it is not liable for attorney fees because attorney Owoh, who handled the GRC litigation, was the true requestor.

Specifically, Bayonne contends the AARDI is a “sham” entity. It alleges the organization is registered at Owoh’s home address, and Owoh’s family members are the Institute’s members. Owoh disputes Bayonne’s claim that AARDI does not exist. The GRC referred the matter to the OAL to engage in fact-finding and resolve whether AARDI is an entity that is separate from Mr. Owoh.

The AARDI is entitled to an attorney fee award if it is a genuine, separate organization. But if it’s not, then there’s the unfortunate result that many public bodies have paid unwarranted attorney fees for Mr. Owoh’s work in previous OPRA cases involving the AARDI.

Reminder: The GRC Considers Autopsy Reports to be Open to the Public

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In a recent case, Costigan v. Cape May County Prosecutor’s Office, the GRC reiterated a position it has held since 2015: autopsy reports are not confidential under OPRA’s criminal investigatory record exemption, because they are required by law, specifically N.J.S.A. 52:17B-88, to be filed in the offices of the State Medical Examiner.

After the GRC’s 2015 ruling, I noted in this post that its conclusion concerning autopsy reports may not be correct. The legislative history of N.J.S.A. 52:17B-88 seems to suggest that this statute is not intended to grant full public access to autopsy reports. However, the GRC continues to rely on its 2015 ruling, which did not address this point.

GRC: OPRA Requires Disclosure Of Bids Submitted By Unsuccessful Bidders

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Ruling on what it characterized as a “novel” issue, the GRC recently concluded that OPRA requires the disclosure of the bid documents submitted by the unsuccessful bidders for a public contract. Barth v. Rutgers (2017-121).

The request sought all proposals submitted to Rutgers in response to the RFP for Commencement Photography Services. Rutgers disclosed the winning proposal, but withheld the losing bids, arguing that disclosure would put vendors at a competitive disadvantage and also could lead to collusion among prospective vendors.

In its decision, the GRC noted that while it has upheld the confidentiality of bids during the vendor selection process, neither it nor a court has addressed whether OPRA mandates the disclosure of the losing bids after the contract has been awarded. Despite the novelty of the issue, the GRC engaged in little analysis; it simply stated that it saw no danger of competitive disadvantage or bidder collusion in this situation.

It’s unfortunate that the GRC did not explain the basis for this determination. I think there are strong arguments in favor of maintaining the confidentiality under OPRA of unsuccessful bidders’ documents. Making them automatically public creates a real risk of potential collusion and bid-rigging. And notably, losing bid records are exempt under FOIA. Hopefully, a future court or GRC case will address these concerns.

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.

 

GRC: Police Body Camera Footage Is Not Exempt Criminal Investigatory Record

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The GRC has issued its first decision on the question of whether police body camera footage is accessible under OPRA. Dericks v. Sparta Twp. (Sept. 29, 2017).

The GRC ruled that the criminal investigatory exemption does not apply to police body camera video concerning a criminal matter, because these recordings are required by law–namely, an Attorney General Law Enforcement Directive–to be made, maintained or kept on file. See this post for a discussion of how the Supreme Court’s Lyndhurst opinion made clear that Attorney General Directives have the force of law for purposes of the criminal investigatory record exemption.

In a footnote, the GRC stated that the Attorney General’s Directive does not provide confidentiality to body camera recordings under OPRA. It noted that the Directive places restrictions on disclosure of these recordings, but interpreted the Directive as saying that the restrictions do not apply when responding to an OPRA request.

The language of the Directive doesn’t seem to support the GRC’s interpretation. I read the Directive as providing that OPRA requests for these records must be referred to the Division of Criminal Justice or the County Prosecutor for a determination of whether the public need for access outweighs the law enforcement interest in maintaining confidentiality.

It’s surprising the GRC chose to deal with the issue of the requirements of the Directive in the Dericks opinion, because it did not need to reach this question in this case. The GRC held that the recording in this case was exempt on another basis–a statute providing confidentiality to records pertaining to juveniles charged with delinquency.

GRC: OPRA Penalties Are Personal

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In a recent decision, the GRC reaffirmed its position that OPRA’s penalties are imposed upon the person  who knowingly violated the statute, rather than the public body employing that person. Doss v. Boro of Bogota, No. 2013-315/2014-152 (June 27, 2017).

The Doss case shows how strictly the GRC applies this concept. The GRC had sent the case to the OAL for a determination of whether the custodian or any other Boro employee had knowingly and willfully violated OPRA. At the OAL proceeding, the Boro stipulated that, through the prior Administrator, the Boro had knowingly and willfully denied access to the requested records, and agreed to pay the $1000 penalty. Based on this, the ALJ said that the case was resolved. However, the GRC disagreed, and it remanded the matter back to the OAL for a determination of whether any specific individuals had intentionally violated OPRA.

The GRC’s decision was based on the rationale that an OPRA penalty is personal, and is imposed solely on the individual who committed the violation. The GRC said that in this case, there was no evidence that the prior Boro Administrator had authorized the Boro to stipulate that he had knowingly committed a violation.

The GRC did not indicate that a public body is prohibited from paying the fine on behalf of the guilty employee. Nevertheless, despite the Boro’s conceding that it had violated OPRA, through the actions of its former employee, and despite the Boro’s payment of the penalty for a violation, the GRC determined that the case was not resolved.

How Will New Jersey Respond To An OPRA Request From Trump Voter Fraud Commission?

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Yesterday, the State Division of Elections announced that the request for voter data from the Trump administration’s “voter integrity commission” is “under review.” The Division’s statement seems to suggest that New Jersey will only release public information to the Commission in response to an OPRA request: “[N]o information has been released nor will any future information be released that is not publicly available or does not follow the appropriate legal process for information requests.”

Presumably, the “legal process for information requests” means OPRA. But it appears that the Division would have to deny any OPRA request submitted on behalf of the Commission because the request would not be from a citizen of New Jersey. As discussed here, the GRC ruled in October 2016 that only citizens of New Jersey may make OPRA requests.

As I’ve previously discussed, there’s no precedential court opinion on the question of whether OPRA is available only to New Jersey citizens. In the absence of judicial precedent on an OPRA issue, New Jersey state agencies typically comply with GRC rulings. In this matter, the Division would be constrained to reject entirely an OPRA request from the Commission, based on the GRC’s 2016 citizenship decision.

GRC: A Mayor’s Private Calendar is Confidential under OPRA

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The GRC recently upheld Jersey City’s denial of an OPRA request for Mayor Fulop’s private meetings calendar. McDonald v. Jersey City. The GRC decision is based on Supreme Court and Appellate Division opinions holding that officials’ private calendars are confidential under OPRA.

This ruling shouldn’t be noteworthy, since New Jersey law has been clear for many years that OPRA does not permit the disclosure of public officials’ private calendars. However, in this case the GRC initially overlooked the relevant court opinions and issued a decision saying that the mayor’s calendar had to be disclosed. Fortunately, the agency subsequently realized that it had erred, reconsidered its previous determination and issued a decision that complies with OPRA case law.

GRC Holds, For The First Time, That Only New Jersey Citizens May Make OPRA Requests

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In a decision issued on October  4, 2016, the GRC departed from its precedent of the past 14 years and ruled that only New Jersey citizens are permitted to make OPRA requests. Scheeler v. Burlington Tp. (2015-93).

The GRC primarily relied on a few recent trial court opinions that determined that the Legislature intended, in enacting OPRA, to prohibit those from outside the state from obtaining New Jersey government records. As I’ve discussed previously, I think this result is both wrong as a matter of law and unenforceable in practice.

In any event, the question of whether non-citizens may make OPRA requests is now before the Appellate Division, so by next year, when the court renders its opinion, the GRC’s position on the issue will no longer matter.