In a case of first impression in New Jersey, the GRC recently determined that OPRA does not require disclosure of information on a public employee’s personal cell phone bills, even where the personal phone is sometimes used for public business. See Verry v. Boro of South Bound Brook.

The requestor in this matter believed that the Borough Clerk used his personal cell phone to conduct public business and also to make private calls while at work. His OPRA request sought the destination location of calls made and received, on various dates, on that phone.

The GRC referred the  case to an ALJ, who ruled that the use of a private cell phone to make personal calls at work does not trigger OPRA, and that the privacy interest in the cell phone records outweighed the requestor’s interest in obtaining records of call destination location. The GRC adopted the ALJ’s decision.

The ALJ noted that the courts have determined that public employee telephone records are generally confidential and protected by privacy expectations. He performed the balancing test required by the Supreme Court in OPRA privacy cases, and concluded that the requestor had not shown a need for the call location information that overcame the clear privacy interest in one’s personal cell phone bills.

The requestor primarily relied on the Appellate Division’s opinion in an OPRA case, Livecchia v. Boro of Mount Arlington, where the court required disclosure of destination location data from government employees’ public cell phones, based on a claim that these employees were using the phones for personal calls. The ALJ said that Livecchia did not apply because there the phone charges were paid by the public agency; in the present case, the public did not pay for usage of the phone.

The most important aspect of this case is that the GRC rejected the requestor’s argument that the ALJ should have held a plenary hearing to determine how much the cell phone was used for government matters. I’m sure that many public employees occasionally use their personal cell phones for a work-related call. This should not subject them to the threat of an OPRA suit involving discovery and a hearing concerning their personal cell phone records.

It should be kept in mind that this decision deals only with personal cell phone bills and does not involve an important question that no New Jersey court has yet addressed: whether OPRA covers text messages about government business on personal cell phones.

This blog summarizes the final decisions rendered each month by the GRC. The summaries below are of the cases decided at the GRC’s most recent meeting, held at the end of June (see here for summaries of the decisions issued at the GRC’s previous meeting in May 2015).

-Carter v. Franklin Fire Dist. 1: GRC adopted the ALJ’s decision that the custodian did not knowingly and willfully violate OPRA, and therefore should not be penalized, but reversed the ALJ’s award of attorney fees to the requestor, because the requestor had not prevailed on the penalty claim.

-Verry v. Boro of South Bound Brook (#2011-280): GRC held that the custodian’s personal cell phone bills are not government records, and the possibility that the cell phone might have been used on occasion for government business did not outweigh the privacy interest in the bills.

-Verry v. Boro of South Bound Brook (#2013-311): GRC awarded requestor attorney fees of $3720, for 12.4 hours at $300).

-Camarata v. Essex Prosecutor: GRC held that records of an internal affairs investigation are exempt.

-Barry v. NJ Transit (#2014-264): GRC held that the requested record was exempt as a criminal investigatory record.

-Barry v. NJ Transit (#2014-309): GRC held that the custodian did not commit a knowing and willful violation of OPRA.

-Sedges v. Morris Prosecutor: GRC held that the custodian erred by failing to give the requestor a specific reason for denying the request, but dismissed the complaint because no responsive records existed.

-Saccento v. Morris Prosecutor: GRC dismissed the complaint because records were released to the requestor.

-Scheeler v. Woodbine Bd. of Ed (#2014-17): GRC held the custodian erred by not giving immediate access to certain contracts, bills, expenditures and salary information, and failing to provide salary information for a few employees. It determined that the violations were not knowing and willful.

-Scheeler v. Woodbine Bd. of Ed (#2014-59): GRC held that the custodian performed an insufficient search, but determined there was no knowing and willful violation.

-Scheeler v. Dept. of Ed: GRC held that a request for identity of the person who answered certain OPRA requests was an invalid information request.

-Moore v. State Police: GRC held that a request for “information” about a murder is invalid.

-Abdur-Raheem v. Div of Criminal Justice: GRC held that request for an entire case file is an invalid request.

-Sanders v. Dept. of Corrections: GRC held that a request for all records regarding the requestor is invalid.

-Gould v. Twp of Fairfield: GRC held that the request was invalid as overly broad.

-Paladino v. Dept. of Corrections: GRC held that the custodian properly denied the request because the requestor did not have sufficient funds in his inmate account to pay copying fees.

-Janson v. Burlington City: GRC declined to penalize custodian, despite the failure to respond timely to the request, because records were eventually provided and there was no knowing and willful violation.

-Coulson v. Kearny Fire Dept.: GRC declined to penalize custodian, despite the failure to respond properly to the request, because records were eventually provided and there was no knowing and willful violation.

-Bernisky v. State Police: GRC held that the records were exempt criminal investigatory records.

-Hall v. Upper Saddle River: GRC declined to penalize custodian, despite the failure to respond  timely to the request, because records were eventually provided and there was no knowing and willful violation.

-Marck v. Div. of Consumer Affairs: GRC held that a licensing application  submitted to Board of Professional Engineers is exempt under a Dept. of Law & Public Safety regulation.

-Palkowitz v. Hasbrouck Heights (#2014-302): GRC declined to penalize custodian, despite finding that the special service charge was incorrect, because there was no knowing and willful violation. For a discussion of the special service charge calculation issue, see this previous post.

-Palkowitz v. Hasbrouck Heights (#2014-346): GRC held that a request for all footage from all police department cameras was invalid overbroad request.

-Dalal v. Camden Prosecutor: GRC dismissed complaint because the public body had no records responsive to the request.

-Wares v. Passaic Prosecutor: GRC held that complaints from the public about law enforcement officers’ actions are exempt personnel records, and internal affairs records are exempt under Attorney General guidelines.

-Eden v. Little Egg Harbor: GRC held that a request to create a list showing the properties at certain assessed values, and including other information about the properties, was an invalid research request.

-Anonymous v. Ocean City Historic Preservation Comm: GRC held that a draft map is exempt as advisory, consultative and deliberative material.