The GRC recently determined, for the first time, that autopsy reports are not covered by OPRA’s exemption for criminal investigatory records. Schultz v. State Police (2014-390).

In Schultz, the GRC noted that its prior decisions held that autopsy reports are exempt criminal investigatory records. The GRC reversed its position because, it said, it was not previously aware of N.J.S.A. 52:17B-88, which requires that the findings and conclusions of an autopsy be filed in the offices of the State Medical Examiner, the county medical examiner and the county prosecutor. According to the GRC, this statutory provision means that autopsy reports do not meet OPRA’s definition of a criminal investigatory record, which applies only to records not required by law to be made, maintained or kept on file.

The GRC emphasized that it was not holding that autopsy reports must be disclosed in their entirety, as other exemptions may apply to information contained within a specific report. In addition, photos and videos from an autopsy continue to be exempt, as stated in OPRA, N.J.S.A. 47:1A-1.1

The Schultz case involved a closed criminal investigation. It doesn’t offer specific guidance on how to deal with a request for an autopsy report while the investigation is ongoing.

It’s worth noting that there is some ambiguity in exactly what N.J.S.A. 52:17B-88 means with regard to public access to autopsy reports. In addition to the language the GRC relied on, this statute also says, in an amendment added in 1989, that a copy of the report must be released to the closest surviving relative of the decedent within 90 days of receipt of a request. The legislative history of the amendment states that this provision was needed because nothing in the law at the time enabled the decedent’s family to obtain the report.

This statement suggests that the Legislature believed that the Right to Know Law–which applied at that time– did not make autopsy reports publicly accessible, despite the statutory requirement that the report be filed with certain offices. Because the legal standards of the Right to Know Law govern the interpretation of OPRA’s criminal investigatory exemption (see this Appellate Division opinion), it is not clear that N.J.S.A. 52:17B-88 is intended to mandate the disclosure of autopsy reports to anyone filing a public records request. The statute could be understood as requiring release only to the decedent’s close relatives, and applying the criminal investigatory record exemption to any other requestor.

This argument apparently was not presented to the GRC. It will be interesting to see if the GRC or a court is asked to address this issue in a future case.

One of OPRA’s more confusing requirements is that a custodian “ordinarily shall” grant “immediate access” to certain records, such as bills, contracts and employee salary information. The statute doesn’t define the meaning of the vague terms “ordinarily” and “immediate,” and the courts have not interpreted this language. As a result, it’s not clear exactly how quickly a custodian must respond to a request covered by the immediate access provision.

The GRC also has not clearly defined the immediate access requirement. In the FAQ section on its website, the GRC says the phrase means “at once, without delay,” unless  there is a legitimate reason for delay, such as that the records are in use, in storage, or involve conversion to another medium.

Unfortunately, the “at once” standard is ambiguous and unrealistic. For example, it implies that the custodian must respond at the very the moment he sees a request for a bill. But as a practical matter this is impossible; the custodian needs time to figure out where the bill is located, obtain a copy, review it for potential confidential material and then prepare the document for sending to the requestor. And of course it is likely that at the same time, the custodian would be working on other matters with deadlines. Under these typical circumstances, it may take a diligent custodian a day or two to send out the requested bill. Would the GRC say this custodian violated OPRA?

The GRC’s cases do not answer this question. However, the GRC’s decisions show it takes a hard line on the immediate access provision. A recent decision illustrates this. In Giambri v. Sterling H.S. Dist. (#2014-394), the request sought contracts  and salary information of 6 employees, as well as many other records. The custodian asked for an extension of time to respond to the entire request on the 5th business day after receipt of the request. The GRC stated that the custodian violated OPRA by failing to respond immediately to the contract and salary portions of the request. It noted that it had previously determined that responding on the 4th business day is a violation.

The record before the GRC showed that during the same time frame the custodian was dealing with numerous other OPRA requests submitted by Giambri. Although having to deal with the other requests presumably affected the custodian’s ability to respond quickly to the request in issue, the GRC did not mention this factor in holding that the custodian failed to comply with the immediate access requirement.

As noted above, no court has spoken on the immediate access requirement. Custodians should be aware of the GRC’s strict approach when a request for an “immediate access” record is received.

Unlike other state agencies, the GRC does not require complaints to be brought to it within a specified time frame. A requestor must file suit with a court within 45 days of the custodian’s decision, but there is no deadline at all for filing a complaint with the GRC.

Why is there no deadline? In a recent interim decision, Paff v. Harrison Twp. Fire Dist., the GRC explained that it does not have the legal authority to impose one. It stated that because OPRA does not contain a statute of limitations for filing complaints with the GRC, the agency lacks the power to establish such a requirement.

In my opinion, the GRC’s reasoning is incorrect. Administrative agencies have the inherent power to adopt procedural rules to enable them to carry out their statutory responsibilities. This means that an agency may set a reasonable deadline for the filing of complaints, where the Legislature has not mandated a specific deadline. For example, the Civil Service Act establishes a statute of limitations only for appeals to the Civil Service Commission of major disciplinary actions. The Commission’s rules set deadlines for filing administrative appeals regarding the many other types of disputes heard by this agency.

Similarly, the GRC could require that requestors file complaints within a reasonable time frame after receiving the custodian’s decision. Adoption of such a deadline would be consistent with the Supreme Court’s statement that OPRA requires the swift resolution of public record disputes.

In New Jersey, as well as in most states across the country, it is not clear whether public officials’ text messages are subject to freedom of information laws. Recently, the GRC issued one of the few decisions in the nation on this significant issue, and the first rendered in New Jersey. The GRC stated that text messages are government records under OPRA.

In Verry v. Franklin Fire Dist. 1 (#2014-387), the requestor asked for certain text messages of various officials and employees from their government-issued cell phones. The custodian denied the request on the ground that there were no responsive records; the individuals either no longer had the cell phone from the period covered by the request, or their phones did not have the ability to save texts.

Although the GRC ultimately affirmed the denial because the agency did not have the requested records, it nevertheless decided to “provide a definitive holding” on the issue of whether text messages are covered by OPRA. It determined that texts fall under the statute’s definition of a “government record,” as they are information that is stored or maintained electronically. The GRC said that texts are “fundamentally similar” to emails, because they are electronic communications.

The GRC’s brief analysis, while straightforward, does not fully deal with the questions that come up with regard to text messages under OPRA. For example, why doesn’t the case law holding that public employee telephone records are confidential (see this post) apply to cell phone text messages?

The impact of the GRC’s ruling is not clear. The GRC acknowledged that its decision does not require text messages to be retained by public employees. As a practical matter, as demonstrated by the Verry case, text messages usually won’t be saved, so in most cases there will be no records to provide.

However, the GRC’s decision is important because it suggests that future requests for text messages should not simply be denied on the ground that they do not involve a government record. Instead, under this decision, custodians will have to conduct a search to see if any text messages exist.

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 July (see here for summaries of the decisions issued at previous meetings).

-Carroll v. Trenton School Dist.: Custodian’s failure to respond properly to the request was not a knowing and willful violation.

-Dunleavy v. Jefferson Twp. Bd. of Ed.: (1) Custodian’s untimely response was not a knowing and willful violation; (2) One part of the OPRA request, asking whether a particular individual was employed, was an invalid information request.

-Barry v. NJ Transit: Custodian’s untimely response was not a knowing and willful violation.

-Moss v. Newark Zoning Bd.: Custodian lawfully denied the request because the requested records did not exist.

-Caggiano v. Governor’s Office: Custodian properly denied a request for all emails sent to the Governor’s Office by the requestor.

-Demitroff v. Buena Vista Fire Dist. No. 1: Custodian properly denied the request because the document requested was that of a private firm and was not in the agency’s possession.

-Alexander v. NJDOC: Custodian’s failure to provide the requested full name of an employee was not a knowing and willful violation.

-Verry v. Franklin Fire Dist. No. 1: (1) A resolution for no-bid professional services is not subject to OPRA’s “immediate access” provision; (2) Parts of the request were invalid because they did not specify a time frame for the correspondence sought; (3) Requestor was not entitled to attorney fees under the catalyst approach, even though records were released to him after the filing of the GRC complaint, because he filed the complaint without giving the custodian time to respond to his demand for additional records.

-Kimpton v. NJDOC: Custodian properly denied the request under the security exemption.

-Musgrave v. NJ State Police: There was no unlawful denial, as the request was properly denied under the law existing at the time of the request, and the records were subsequently released.

-Muata v. NJDOC: Denial of the request was upheld because no responsive records existed.

-Garcia v. NJDOC: Custodian properly denied the request as an invalid research request.

-Verry v. Franklin Fire Dist. No. 1 (#2014-387): The request for text messages was properly denied because no responsive records existed.

-Schultz v. NJ State Police: (1) a portion of the request, seeking all documents related to a certain investigation ,was properly denied as overbroad; (2) Autopsy reports are not criminal investigatory records and therefore must be disclosed; (3) Other reports and records were properly withheld as criminal investigatory records.

-Giambri v. Sterling H.S. Dist. (#2014-394): Custodian’s failure to provide immediate access to certain contracts and salary information was not a knowing and willful violation.

-Giambri v. Sterling H.S. Dist. (#2014-397): The request was properly denied as overly broad and requiring research.

-Gartner v. Middlesex Boro: Custodian’s belated disclosure of executive session minutes was not a knowing and willful violation.

-Scheeler v. NJDOE (#2015-16,17): Custodian’s insufficient response to the request was not a knowing and willful violation.

-Scheeler v. NJDOE (#2015-19): Custodian properly requested an extension of time to respond to the request.