Monthly Archives: November 2015

Summaries of GRC Decisions, November 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.

-Ciccarone v. Dept. of Treasury–GRC partially reconsiders prior decision ordering disclosure and permits redactions of certain advisory, consultative, deliberative and attorney-client material. Also, the custodian did not commit a knowing and willful violation.

-Post v. NJ Highlands Council–the custodian properly denied access because a draft document is exempt, and the other documents sought by the request did not exist at the time of the request.

-Campisi v. City of Millville–the complaint was dismissed because it was filed before the expiration of the extension of time to answer the request.

-Dello Russo v. East Orange-the City’s policy of not accepting electronically-submitted OPRA requests is unreasonable under OPRA, and therefore the City was required to respond to the request here, which was submitted by email. The custodian did not commit a knowing and willful violation.

-Lio v. Boro. of Fairview–the custodian erred by not timely answering the request, but the request was properly denied because police internal affairs records are exempt.

-McGeachy v. NJ DOC–the request for inmate financial records was properly denied under Exec. Order 26 (2002), which exempts personal financial information from disclosure.

-Stolte v. State Police–the request was properly denied because no responsive records existed.

-Watts v. City of Pleasantville–the custodian conducted an inadequate search, but the violation was not knowing and willful because she searched again and provided all responsive records to the requestor.

-Bangala v. NJ Office of Public Defender and Lemmon v. NJ Office of Public Defender–the requests were properly denied, because OPRA exempts all case file records of the Public Defender.

-DeYoung v. Boro. of Folsom–the complaint was dismissed because the complainant was not the requestor.

The Supreme Court Has The Opportunity To Define What Is A Substantially Disruptive OPRA Request

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As discussed here, the Gilleran Supreme Court case is extremely important, because it involves the Court’s first review of OPRA’s security exemptions. And the case also gives the Court the opportunity to decide another significant OPRA issue–the meaning of the statutory provision allowing a custodian to deny a request that would “substantially disrupt agency operations.” N.J.S.A. 47:1A-5g.

Although some court opinions have mentioned this provision, no opinion has definitively interpreted it. In my experience, determining whether a particular request is substantially disruptive is one of the most difficult issues facing public bodies. In the absence of standards set forth in the statute or by a court, agencies struggle to decide whether they are legally obligated to devote an extensive amount of time and resources to answer a request.

The request at issue in Gilleran is  a clear example of a substantially disruptive request. The Appellate Division declined to resolve the case on this basis, but it acknowledged that Gilleran’s request, for 14 hours of video footage, was “unreasonably burdensome,” “virtually impossible to accomplish without devoting the time and services of multiple employees,” and not within OPRA’s contemplation. It would appear that Gilleran’s request is precisely the kind of request that the statute’s substantial disruption language is directed at.

Presumably, the Supreme Court, in reviewing a case presenting such an invalid request, will not ignore the necessity of addressing the substantial disruption issue. The validity of an OPRA request must always be resolved at the outset; OPRA does not require custodians to attempt to answer requests that are “unreasonably burdensome” (in the words of the Appellate Division here) or otherwise invalid.

In this case, the Supreme Court needs to decide at the outset whether Gilleran’s request, and similar requests for surveillance camera recordings, are invalid under OPRA’s substantial disruption provision. Such a decision will provide crucial guidance to agencies that goes far beyond the issue of access to surveillance footage–agencies are often confronted with many different types of massive OPRA requests that may substantially disrupt operations.

 

 

 

 

Appellate Division Opinion On Civil Discovery Of Criminal Investigatory Records

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A recent Appellate Division opinion serves as a reminder that OPRA’s exemption for criminal investigatory records is not dispositive of a civil litigant’s discovery request for such records. The court reaffirmed the well-established principle that a civil litigant may obtain discovery of criminal investigatory records, if he can prove that his need for the information for the litigation outweighs the strong confidentiality interest that covers these records.

In Varnelas v. Morris County School District, plaintiff sued various defendants over the tragic suicide of her son, allegedly caused by bullying and assaults committed by two juveniles and an adult, Michael Conway. The Morris County Prosecutor’s Office had investigated and indicted Conway. In connection with the civil action, plaintiff issued a discovery subpoena to the Prosecutor’s Office for its investigatory file on Conway. The Prosecutor’s Office refused to comply with the subpoena, based on OPRA’s exemption for criminal investigatory records.

The Appellate Division stated that OPRA’s exemption does not forbid production of the records when they are sought for civil discovery. Instead, the common law balancing of needs test applies to the litigant’s request. The Appellate Division remanded the case for the trial judge to apply the balancing test to determine whether plaintiff’s need for the information in the records outweighed the confidentiality interest here.

This opinion breaks no new ground, as the law is clear that civil litigants can potentially obtain discovery of OPRA-exempt records, depending on the outcome of the balancing test. Still, it’s a useful reminder that trial judges must engage in a careful evaluation of the confidentiality and litigation interests at stake before granting a discovery request for such a record.

 

A Reminder From The Appellate Division: Criminal Investigatory Records Are Not Always Entirely Confidential

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I’ve noted previously that agencies face the risk that a judge will order disclosure of law enforcement records under the common law right of access, even where those records are confidential under OPRA. See part 3 of this post. The Appellate Division issued such an order yesterday, in an unpublished opinion involving documents in a Division of Criminal Justice (DCJ) investigatory file.

In Lagerkvist v. State of N.J., the plaintiff made an OPRA and common law request for the records of DCJ’s investigation into alleged “double-dipping” pension violations by three individuals in different county sheriff’s offices. The trial judge upheld the denial of the OPRA request, but ordered the release of a few of the documents in the investigatory file under the common law balancing test. The judge also rejected plaintiff’s common law claim as to three documents, and plaintiff appealed that ruling.

The Appellate Division disagreed with the ruling that two of the documents were entirely confidential. In reversing the trial court as to these two records, it emphasized that the investigation was closed and that the documents contained no information about investigative techniques or the agency’s deliberative process. However, the appellate court recognized that some of the information in the documents might be confidential, and remanded the case for this issue to be considered by the trial court.

The Appellate Division did uphold the complete confidentiality of the third record, an internal DCJ memo found to be covered by the deliberative process privilege.

The fact-specific nature of this opinion makes it of little value for guidance in handling future cases. But as mentioned, it’s a reminder that because of the common law right of access to records, agencies may be required to disclose certain records that are confidential under OPRA.

Gilleran–The First Time The Supreme Court Will Consider OPRA’s Law Enforcement Records Provisions

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The Supreme Court recently announced that it will review the Township’s appeal in Gilleran v. Tp. of Bloomfield, in order to decide whether building security camera footage is confidential under OPRA. This case is hugely significant: for the first time, the Court will consider law enforcement interests under OPRA.

To resolve the Gilleran case, the Court must interpret and apply OPRA’s exemptions for records related to public safety and security, including (1) building emergency or security information, the disclosure of which would jeopardize the security of the building or persons, and (2) security measures and surveillance techniques, the disclosure of which would create a risk to the safety of people and property. In addition, the Court will have to take into account the various other statutes, regulations, executive orders and court opinions which implement the policy that OPRA requires confidentiality whenever the disclosure of any type of record would pose a safety risk.

The Court’s decision here will establish the scope of OPRA’s security provisions, and as such, will have a major impact on law enforcement in New Jersey. A wide range of records, not just building security camera recordings, will be affected, such as State Police and gubernatorial travel records, school safety drill information, and many types of reports generated by police departments, prisons and other law enforcement agencies.

It’s crucial that the Attorney General and other law enforcement experts file amici curiae briefs in this case, to provide the Court with insight into the law enforcement interests that are at stake here.

Supreme Court To Review Whether OPRA Requires Disclosure Of Building Security Camera Videos

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On Friday November 6, the Supreme Court announced that it has granted review of the Appellate Division’s decision in Gilleran v. Township of Bloomfield, in which the appellate court ordered Bloomfield to release videos taken by building security cameras. This will be the first time the Supreme Court will address OPRA’s exemptions for safety and security.

According to the office of the Supreme Court Clerk, the issue on appeal is: “Does the Open Public Records Act require the Township to disclose video recordings from a security camera surveilling the back of the Township’s municipal building (i.e., Town Hall)?”

As discussed here, in its opinion the Appellate Division recognized that there is a strong security interest in maintaining the confidentiality of this kind of video in general, but held that Bloomfield had not presented specific enough evidence of the security risk in this case. I suspect the Supreme Court’s decision to review this holding is based, in part, on the understanding that the supposed lack of specific evidence is beside the point–presumably, the security risk posed by granting release of such recordings does not significantly vary across the state.

The Supreme Court’s decision to take this case has far-reaching implications. Resolution of the specific question of access to building security camera recordings will have wide impact, as many public buildings throughout New Jersey have such cameras. And of even greater importance is the fact that the Court, for the first time, will interpret the legal standards governing OPRA’s exemptions for records affecting security. This will affect future public access to a variety of records, not just building cameras.

 

GRC: A Custodian is not Obligated to Designate a Substitute Custodian During a Temporary Absence from the Office

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In a recent decision, the GRC rejected the argument that a custodian is in violation of OPRA if he fails to designate another person to deal with OPRA requests while he is temporarily absent from the office.

The facts in this case, as recited by the GRC, seem to show a requestor trying to play “gotcha” with the public body. The requestor submitted his request on September 10, 2014. The same day, he received an automatic email reply stating that the custodian was away until after September 14. Thereafter, the requestor did not contact the agency about the status of his request. He filed a complaint with the GRC on September 23, based on the agency’s failure to respond by September 19 (7 business days after the request was made).

The custodian, through counsel, contacted the requestor on September 23 to advise that the request had been received on the 15th, when the custodian returned to the office, and therefore the 7-day period had not yet expired. The requestor refused to withdraw his complaint. The custodian fulfilled the request on September 24, which was 7 business days from the 15th.

The GRC held that the time frame for responding to the request began on September 15, when the custodian actually received the request. It also rejected the requestor’s claim that the custodian violated OPRA by not arranging for someone else to deal with OPRA requests while he was away. The GRC stated that OPRA imposes no such requirement.

The GRC noted that its position is that “best practices” would be to designate another employee to handle OPRA requests if the custodian is to be “unavailable for an extended amount of time.” But this suggestion is not equivalent to a mandate, and a custodian’s failure to follow the suggestion cannot be a violation of the statute.

Moreover, this case did not involve a material delay in responding to the OPRA request. The custodian told the requestor on September 23 that the deadline for responding to his request was September 24, which was only 3 business days after the date he had anticipated receiving a response. Despite this, the requestor pursued his GRC case.

The GRC’s decision here is consistent with the approach taken in various court opinions, see this post, in which judges have declined to impose liability upon public bodies that committed inconsequential errors in handling OPRA requests. These cases should serve as notice to requestors that they should not race to file complaints over trivial matters, such as minor delays caused by a custodian’s brief absence.

Summaries of Decisions-GRC Meeting of October 27, 2015

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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.

Tompkins v. City of Newark–The custodian properly denied the request on the basis that there were no records, and appropriately indicated to the requestor that the records instead may be held by another agency.

Tompkins v. Essex Prosecutor–the portion of the request seeking the identity of the prosecutor who dismissed a certain complaint was an invalid request for information. The second part of the request was properly denied on the basis that the office did not have the requested records.

Kovacs v. Newark Police Dept.–the GRC reconsidered and reversed its order directing the custodian to comply with the request. Upon reconsideration, the GRC determined that the request, which asked for all arrest records and other reports pertaining to a specific individual, was an invalid research request. Because the request had no date range, the GRC concluded it would be an “immense burden” to locate responsive records.

King v. NJ DOC–the custodian properly denied access to information in a contractor’s RFP submission, based on the financial/proprietary/advantage to competitors exemption.

Scutro v. City of Linden–the custodian erred in failing to find and produce a requested record, but this was not a knowing and willful violation.

Nichols v. Bergen County Housing Authority–the GRC upheld the denial of the request because a trial judge had previously considered the same request and upheld its denial by the Bergen Housing Authority.

Barker v. Boro of Lakehurst–an agreement between the Boro and an employee, resolving a disciplinary matter involving that employee, is a confidential personnel record.

Verry v. Franklin Fire Dist. 1–the GRC dismissed the complaint as not ripe, because it was filed before the deadline for the custodian’s response to the OPRA request.

Rodriguez v. Kean U.–the custodian erred in withholding portions of some documents, but this was not a knowing and willful violation.

Scheeler v. Galloway Tp.–the custodian properly denied the initial request for a settlement agreement because at the time the request was made, the agreement had not been fully executed. And because the custodian subsequently provided the requestor with the executed agreement, there was no denial of access.

Durham v. NJ DOC–the custodian properly denied one request on the ground that there were no records. There was no denial of access as to another request, because the custodian made those records available for inspection.

Stolte v. Burlington Prosecutor–the request was properly denied because it did not contain enough information for the custodian to locate responsive records.

Stolte v. NJ Div. on Civil Rights–the request was properly denied because the agency had no responsive records.

Altomonte v. Branchburg School District–the custodian properly withheld records of a student pusuant to the requirements of FERPA.

Post v. NJ Office of Attorney General–there was no unlawful denial of access because the agency had no responsive records.