In a recent opinion dismissing an OPRA declaratory judgment suit brought by a town, discussed here, the judge also said that the requestor’s New Jersey Civil Rights Act claim against the town was still open. The judge did not mention the allegations underlying this claim or analyze the legal arguments in any way.

A valid Civil Rights Act cause of action requires showing that the plaintiff’s constitutional rights have been violated. It is not unusual for requestors to include a count in an OPRA lawsuit alleging that the public body’s denial of access to records also violated their constitutional rights. However, the courts have not addressed whether such a claim is legally viable in an OPRA dispute.

In this context, a civil rights claim rests on the theory that the improper denial of access to public records violates a requestor’s First Amendment right to obtain information from the government. News organizations argue that this is part of their constitutional right to gather news. Over 20 years ago, in public records cases involving the old Right to Know Law and the common law, the New Jersey Appellate Division rejected the argument that there is a constitutional right to government information. There has been no New Jersey case law on this subject since then.

It seems to me that OPRA’s mandates should not be transformed into constitutional rights, and that the earlier court opinions should continue to apply to prohibit Civil Rights Act claims based on OPRA violations. However, the issue of whether a denial of access to records may also be a constitutional violation cannot be considered settled; it is not clear that a court today would apply the pre-OPRA judicial opinions to this question, in view of the sweeping changes to New Jersey public records law and policy that have resulted from the passage of OPRA.

Resolution of this issue has important consequences for public bodies, because civil rights litigation exposes them to the risk of substantial monetary damage claims.

As discussed here, the Appellate Division is considering the novel issue of whether public bodies may file a declaratory judgment action to resolve the validity of an OPRA request. A trial court judge recently issued an opinion, Hamilton Tp. v. Scheeler, holding that public bodies are not permitted to bring such suits. This opinion is of limited importance, in light of the impending ruling from the appellate court, but it has a few interesting aspects.

In Hamilton, requestor Harry Scheeler sought police department building video camera surveillance footage from Hamilton Township (Atlantic County). The Township filed a declaratory judgment action claiming it should be not be obligated to respond to surveillance video OPRA and common law requests from Scheeler and “Amy Von Bosse,” the latter a fictitious name used by Scheeler to make anonymous OPRA requests.

The trial judge held that OPRA does not permit a public agency to file suit to ask a court to adjudicate a records dispute, reasoning that under the statute, only the requestor is authorized to choose to file an OPRA complaint. The judge also said that allowing declaratory judgment suits would be contrary to OPRA’s policies, on the basis that such litigation would have a “chilling effect” on requestors. The judge awarded attorney fees to Scheeler because he had prevailed on the OPRA declaratory judgment issue.

I’m struck by several ironies presented by this opinion. One is that the judge’s award of attorney fees to the requestor undercuts a key argument against OPRA declaratory judgment raised by the New Jersey Press Assn. in the pending appeal, that permitting such lawsuits will deprive requestors of their ability to obtain attorney fees under OPRA. The Hamilton ruling suggests that, contrary to the NJPA’s claim, judges will award attorney fees to requestors who are successful in OPRA declaratory judgment actions.

Another great irony is that although the opinion rests in part on the idea that requestors will somehow be chilled by OPRA declaratory judgment suits, the requestor who was sued in this case actually contradicts this theory. Scheeler is a frequent OPRA requestor and litigant who has publicly declared that he is not intimidated by government efforts to dispute his attempts to gain access to records.

As mentioned above, the Appellate Division will resolve the validity of OPRA declaratory judgment litigation in its opinion, which may be issued within a few months.

The Appellate Division’s recent opinion in North Jersey Media Group v. Lyndhurst has received a substantial amount of press coverage because it dealt with OPRA’s exemption for criminal investigatory records in the context of a police officer’s shooting of a citizen. Despite the focus on records of criminal investigations, the opinion has significance for all public agencies, not just law enforcement, due to to its discussion of the law governing OPRA requests for records of any type of ongoing investigation.

Agencies often conduct investigations into matters that do not involve potential criminal wrongdoing. When any type of investigation is in progress, criminal or otherwise, OPRA permits records pertaining to the investigation to be withheld if disclosure would be “inimical to the public interest.” N.J.S.A. 47:1A-3a. There have been few published court opinions construing this phrase.

In Lyndhurst, the court established some criteria for evaluating whether disclosure would be inimical to the public interest. The court emphasized the risk of harming an ongoing investigation by public release of witness statements, which may cause other witnesses to question or change their own recollections. And it spoke generally of a public body’s interest “in conducting a thorough and effective investigation, untainted by premature release of investigative materials.”

While the court was dealing with a criminal investigation, its analysis of N.J.S.A. 47:1A-3a is applicable to records of any type of investigation in progress. As a result, all public bodies should be aware of the Lyndhurst opinion.

Does a government record that is exempt from disclosure retain its confidentiality when it has been unintentionally disclosed to a requestor or other individual? This question comes up when a document is mistakenly released, or when someone in an agency leaks information. Usually a record is considered to have lost its confidentiality after it has been disclosed to a member of the public, but an agency can take steps to preserve confidentiality when an unintended disclosure occurs.

The Appellate Division recently issued an unpublished opinion which shows how the Attorney General’s Office dealt with this type of situation and made efforts to preserve the confidentiality of the previously-released records.

The appeal involved a challenge by a State Police trooper to a decision by the Attorney General’s Office (OAG) not to defend him in a civil suit. In 2012, before the appeal was filed, State Police “Review Sheets” were leaked by an an unknown person to the trooper’s attorney. The OAG notified the attorney that these records were covered by the deliberative process privilege and should not be disclosed to others, and demanded that they be returned to the agency. The attorney refused to do so and publicly filed them in federal court, in a related suit.

The OAG filed a motion in federal court to prohibit the further disclosure of the Review Sheets. Although the federal court granted this motion, the trooper nevertheless sought to use these documents in his Appellate Division case, in effect arguing that the prior disclosure had made them public records.

The Appellate Division framed the issue as whether the OAG had intentionally waived the documents’ confidentiality. The court, relying in part on OPRA case law, determined that the Review Sheets contained opinions and recommendations and therefore were confidential under the deliberative process privilege. The court concluded that the OAG had not waived the privilege, even though the documents had been released.

The key to the court’s decision was its determination that the OAG did not intentionally waive the privilege; instead, the release of the documents was unauthorized and inadvertent. In this regard, the court noted that the OAG had “promptly and reasonably” notified the trooper’s attorney of its objection to disclosure of the records, and had moved in federal court to preserve their confidentiality.

The court ordered that the trooper return the Review Sheets to the State and refrain from further disclosure of their contents.