Monthly Archives: October 2015

Appellate Division: Trial Judge Must Conduct In Camera Review Of Redacted Records

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A recent unpublished Appellate Division opinion, Wilde v. Boro of West Cape May, breaks no new ground, but serves as a reminder that in OPRA litigation, judges ordinarily must conduct an in camera inspection of documents claimed to be privileged.

The OPRA request asked for correspondence and legal bills. The Borough produced redacted documents, claiming that the redactions were for material protected by attorney-client and work product privileges. Without reviewing the documents in question in unredacted form, the trial judge upheld the redactions.

Unsurprisingly, the Appellate Division remanded the case to the trial judge, ordering him to conduct an in camera review of the documents to determine if the redactions were proper. The law is absolutely clear that such a review must be undertaken whenever records are redacted under OPRA and there is a dispute over whether the claim of confidentiality applies.

The opinion also mentions, but does not further discuss, the fact that in producing the redacted documents in response to the OPRA request, the public body did not provide the requestor with an explanation of the redactions. Custodians should be aware that OPRA requires that the response to a request must provide some explanation of the basis for withholding or redacting a record. As the Appellate Division said, in an opinion issued a few weeks ago, the explanation need not be detailed; only an indication of the applicable OPRA exemption is required.

Beware Of GRC’s Strict Application Of OPRA’s “Immediate Access” Provision

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As discussed here, compliance with OPRA’s ambiguous requirement that “immediate access” be granted to certain records is difficult. The GRC takes an extremely strict approach to applying this statutory section. Unfortunately, in a recent decision, the GRC also incorrectly interpreted this portion of the statute, in holding that a custodian had violated OPRA even though access to the requested records had not been denied. See Scheeler v. Dept. of Ed.

In this case, the requestor made a multi-part request. One part sought legal bills, which are subject to the immediate access provision. After a brief extension period, the custodian responded to the entire request, providing some documents and advising the requestor that the requested legal bills did not exist.

The GRC ruled that the custodian had violated OPRA with regard to the legal bill portion of the request. It said that the custodian was obligated to tell the requestor immediately that there were no such bills, rather than wait until the final day of the extension period.

In my view, the GRC’s conclusion is inconsistent with the statute, which by its plain language is directed at ensuring that citizens can obtain immediate “access” to certain types of basic government documents, such as bills and contracts. There can be no violation of this right to “access” where, as here, the requested record does not exist.

In any event, custodians must keep in mind that the GRC will find them to have violated OPRA if they fail to advise a requestor right away that requested “immediate access” records do not exist.

Review of Recent Court Opinions On Law Enforcement Records

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The past few months have seen the courts issue a number of opinions concerning OPRA and law enforcement records. In all of these cases, the courts have favored law enforcement interests in maintaining the confidentiality of records related to safety, security and the integrity of investigations.

The following are the most important recently-issued opinions.

–North Jersey Media v. Lyndhurst, in which the Appellate Division held that virtually every record connected with a criminal investigation is confidential, is the most significant law enforcement-related opinion issued under OPRA. The Supreme Court has been asked to review the ruling, but has not yet said whether it will take the case.

-In Gilleran v. Tp. of Bloomfield, the Appellate Division recognized the critical law enforcement interest in protecting the confidentiality of a building’s surveillance camera recordings. Trial courts have relied on the Gilleran opinion to reject efforts to disclose such recordings and other security-related information.

-In NJ 2d Amendment Soc. v. State Police, the Appellate Division upheld the validity of a regulation adopted by the Department of Law and Public Safety which exempts from disclosure under OPRA any information that may reveal the duty assignment of a law enforcement officer.

-Trial judges have applied OPRA’s security exemption to records of school security drills and also to information about the travel expenses incurred by the State Police unit that protects the Governor.

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Summaries of GRC Decisions-September 29, 2015 Meeting

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This blog regularly summarizes the final decisions issued by the GRC at its meetings. The following are the final decisions issued at the GRC’s most recent meeting. For summaries of decisions from prior meetings, see here.

-Boyle v. City of Hoboken: A request asking the custodian to identify police officers from their ID numbers in various reports was an invalid research request.

-Scheeler v. Dept. of Ed: The custodian erred in failing to advise requestor immediately that there were no responsive legal bills. The GRC also held that the requestor improperly challenged another part of the response by filing a complaint before the custodian’s extension period had expired.

-Huegel v. Newark-The custodian’s untimely response was not a knowing and willful violation.

-Caggiano v. Tp. of Green: The custodian properly denied the request because it did not comply with a Superior Court order that required this requestor to submit all his OPRA requests on the public body’s official form.

-Scheeler v. MVC: The custodian’s incomplete response was not a knowing and willful violation.

-Green v. Tp. of Vernon: The custodian did not violate the requestor’s right to make an anonymous request, because the requestor filed the request in person at the town office and later appeared there to pick up the requested records, thereby waiving any anonymity.

-Clancy v. Civil Service Commission: The requested record was confidential pursuant to a federal court order and therefore access was properly denied.

-Diaz-Young v. NJDOC: An internal prison investigatory report is exempt under the safety and security exemption.

-Kovacs v. Union Cty: The custodian’s untimely response was not a knowing and willful violation.

-Verry v. West Milford Bd. of Ed: The custodian’s untimely response was not a knowing and willful violation. In addition, the requestor was not entitled to attorney fees, because his filing of the GRC complaint was not the catalyst for the release of the requested records.

-Elkhill v. Tp. of Edison: The custodian’s untimely response was not a knowing and willful violation.

-Thompson v. Tp. of Mansfield: The custodian’s untimely response was not a knowing and willful violation. In addition, the requestor was not entitled to attorney fees, because she did not obtain the release of any records; the custodian certified that no responsive records could be found.

 

 

Trial Court Upholds Confidentiality Of Police Building Video Recordings

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A Bergen County judge recently upheld the denial of an OPRA request for building surveillance camera recordings, taken within the Weehawken police station, on the basis of the security exemption. Blaettler v. Twp. of Weehawken.

The requestor asked for the videos from the cameras covering the “report area next to the police desk.” The judge agreed with Weehawken’s position that the videos were confidential under OPRA’s exemptions for security and safety. He relied on certifications from members of the police department which demonstrated the safety and security risks entailed in disclosing this area of the police station, including exposing building security shortfalls and revealing sensitive information on a computer terminal.

The judge also denied plaintiff’s common law claim for access to the videos, holding that the safety and security risks outweighed plaintiff’s disclosure interest.

It appears that the Township’s successful defense in this case may be attributable to the Appellate Division’s May 2015 opinion in Gilleran v. Bloomfield Twp. As I pointed out in this post on Gilleran, the Appellate Division recognized the security concerns inherent in releasing footage from video surveillance cameras, and explained what type of evidence is needed to support the withholding of such records. Consistent with what the court said in Gilleran, Weehawken provided appropriate, specific evidence showing the risks involved in disclosure.

 

Appellate Division: OPRA Does Not Require Custodian To Give Detailed Description Of Withheld Records

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On September 30th the Appellate Division issued an unpublished opinion, Academy Express v. Rutgers, which deals with several critical OPRA issues. Most importantly, the court ruled that a custodian is not obligated to give a detailed description of the records that are withheld in the response to the OPRA request.

Requestors often argue that such a description must be provided by the agency to enable them to assess the validity of the stated basis for withholding the record, but the court rejected this claim.

In addition, the court stated that an OPRA complaint cannot be brought as part of a complaint asserting non-OPRA claims, and it reaffirmed that a request for all correspondence concerning a topic is invalid.

Academy Express filed a multi-count complaint against Rutgers concerning Rutgers’ failure to award it a contract to operate the University’s bus system. The complaint also included an OPRA claim regarding Rutgers’ response to Academy’s requests for documents related to the contract award. The trial judge rejected the various claims pertaining to the contract, but determined that Rutgers had violated OPRA and was liable for attorney fees.

One violation, said the trial judge, was that  while Rutgers correctly denied access to a few pages of another bidder’s bid proposal under the exemption for proprietary, commercial or financial material, it did not sufficiently describe the withheld documents, leaving Academy “unable to ascertain the propriety of the assertion of privilege.”

The Appellate Division disagreed. It found that Rutgers’ response was proper, where it simply identified the applicable exemption and the pages that were redacted. And crucially, the Appellate Division said there is no authority supporting the claim that “notwithstanding the proper withholding of a document, a perceived shortcoming in the description of what was properly withheld would be sufficient to find a violation of OPRA.”

This is the first appellate court opinion to deal with the argument frequently made by requestors that a custodian’s response to a request must provide a detailed description of any document that is withheld. The court recognized that the law does not impose such a requirement. The statute only requires that the custodian state the basis for denying a request, as Rutgers did in this case.

The Appellate Division also held that Academy’s request for all correspondence concerning the RFP and the contract award was an invalid request. This is yet another example of what I’ve noted before: requestors continue to make this type of request, even though courts consistently say such a request is invalid.

Finally, attorneys should take note of the court’s ruling that an OPRA case cannot be brought as part of a complaint that asserts other claims. An OPRA complaint must be filed as a summary action and therefore cannot be litigated together with non-OPRA claims.