Monthly Archives: June 2017

Appellate Division Determines That City Of Orange Willfully And Deliberately Violated OPRA

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In an unpublished opinion issued today, the Appellate Division reversed a GRC ruling and held that the City of Orange’s denial of an OPRA request was willful and deliberate. Gordon v. City of Orange.

The GRC had determined that the custodian should not be fined for the incorrect denial of the request, on the ground that there was no knowing and willful violation and unreasonable denial of access. The court, however, concluded that the evidence in the record did not support this finding. The court noted that the City denied the request due to “ongoing litigation,” but in fact there was no litigation. And the court noted that there was no valid basis for denying access to the requested payroll records.

This opinion is unique in OPRA caselaw: this is the first time the Appellate Division has made its own determination that a public body’s violation was knowing and willful, and effectively mandated that the GRC impose  fines on the responsible officials.

This opinion may wind up having an impact on all public officials involved in OPRA matters, by making it more likely that the GRC will impose penalties for OPRA violations. I suspect the GRC will try to avoid appellate reversal in future penalty cases by taking a stricter stance, consistent with the Gordon opinion, in evaluating whether the public body’s conduct was knowing and willful.

Problems And Issues Created By The Supreme Court’s New Opinion On Electronic Records

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The Supreme Court’s opinion in Paff v. Galloway Tp. changes the obligations of records custodians and raises questions with regard to several OPRA issues that had previously been clear. Here are some of the concerns resulting from the opinion.

-The Court’s holding that information in a database is a government record means that requestors can require public bodies to produce an unlimited variety of reports. The Court made clear that custodians must engage in computer programming to produce whatever compilation of information the requestor wants, and may charge a fee for this only where a substantial amount of programming or manipulation is necessary.

-The opinion casts doubt on the viability of the basic principle that OPRA does not obligate record custodians to research and collate information for requestors. The Court said that OPRA does not require the custodian to do research. However, its opinion does require custodians to compile and collate disparate pieces of electronic information, tasks which are typically thought to be inconsistent with the custodian’s duty.

-Further confusion is caused by the Court’s comment that the case law stating OPRA does not allow requests for information is incorrect, as applied to electronic records. This case law says that a valid request must ask for records, not simply pose questions. Is the Supreme Court saying that this is no longer correct, and requests for electronic records that ask questions must be answered?

-The opinion creates uncertainty as to whether GRC decisions are entitled to any weight or deference in court. The Court ruled that GRC informal guidance is entitled to no deference, and noted that the Superior Court should not defer to GRC decisions, but it then seemed to contradict these statements by commenting that the GRC’s interpretation of OPRA is entitled to deference in appellate review of GRC decisions.

Supreme Court Issues Momentous Opinion: Information In A Database Is Government Record

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The Supreme Court issued a groundbreaking OPRA opinion today, holding for the first time that requests for reports generated from information within electronic databases are valid. Paff v. Galloway Tp.

The request in this case sought a log showing the sender, recipient, date and subject matter of emails of certain Township employees over a specific period of time. The Township, of course, had the emails covered by the request, but would have to create a document displaying the information from these emails in the manner demanded by the request. Based on the longstanding rule that OPRA does not require the creation of a new record, the Appellate Division held that this request was invalid. But as I predicted after watching oral argument, the Supreme Court disagreed.

The Court ruled that where information is stored electronically, extracting it does not involve the creation of a new record. This holding was based on the  conclusion that “[b]y OPRA’s language, information in electronic form, even if part of a larger document, is itself a government record.”

The Court recognized that although the request here was valid, the Township had to be given an opportunity to assert any exemptions or other arguments (such as substantial disruption of agency operations) that might preclude disclosure of the information in question.

As discussed in this post, the holding that OPRA requires the compilation of a report from a database has substantial consequences for public bodies and their records custodians. In addition,  the Supreme Court’s new opinion has problematic ramifications for other aspects of OPRA law and practice, which I’ll discuss in subsequent posts.

 

New Appellate Division Opinion Addresses The Deliberative Process Privilege

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One of OPRA’s most important exemptions is the deliberative process privilege, often referred to as the “ACD” exemption, i.e., “inter-agency or intra-agency advisory, consultative, or deliberative material” (NJSA 47:1A-1.1). The Appellate Division recently summarized the legal standards governing the deliberative process privilege in the published opinion of Larkins v. Solter.

Although the Larkins case involved a discovery dispute, not an OPRA claim, it is directly applicable to OPRA matters concerning the deliberative process privilege. As the court noted, the deliberative process privilege is one of the exemptions in OPRA. In fact, the court relied primarily on OPRA case law in explaining the requirements of the privilege.

The Appellate Division held that the deliberative process privilege covered the following records of the Office of the State Comptroller (OSC): an internal audit proposal, a planning memo and a risk/priority evaluation. These documents reflected the OSC’s internal, pre-decisional policy recommendations as to what should be audited and how the audit should be performed. These are precisely the kind of records that are confidential under the deliberative process privilege.

Appellate Division Rejects An Overbroad Request

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Public bodies often receive overbroad OPRA requests that don’t identify specific records. These requests are written in the style of discovery interrogatories, demanding all correspondence about a topic, or all correspondence involving various people or entities. The courts have ruled that this type of request is invalid.

The Appellate Division has once again upheld the denial of such an invalid request, in an unpublished opinion, Serringer v. Office of the Governor.

The request sought all correspondence between the Governor’s Office and Choose NJ, Inc. between 1/1/13 and 4/24/15. The court held that this is an invalid blanket request. The court said that the request’s failure to identify the subject matter of the correspondence rendered it improper, as answering the request would have required every employee of the Governor’s Office to search every file and email account for potentially relevant records.

 

Appellate Division: OPRA Suit Was Properly Dismissed Where It Was Filed After Requestor Received Records

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The Appellate Division issued a published opinion today that states what should be self evident: a requestor may not file an OPRA lawsuit for an award of attorney fees after it has received the records requested. Stop & Shop v. County of Bergen.

Stop & Shop submitted a request in 2011 and received various documents. It submitted a similar request in 2014. This time, the County’s response included a few documents that apparently should have been provided in response to the 2011 request. The court’s opinion does not explain why these records were not originally provided.

Stop & Shop filed suit claiming violations of OPRA and the common law and seeking attorney fees. The court held that this action was moot because plaintiff had received the records before it filed the complaint–in short, it had not been denied access to records.

The court rejected Stop & Shop’s argument that it was entitled to attorney fees, on the ground that its litigation was not the catalyst for the production of the documents.

As noted, this opinion was published, meaning it has precedential force. The opinion should serve as a valuable reminder of a principle that some requestors ignore: the purpose of OPRA litigation is to obtain records for the requestor, not simply an award of attorney fees.

Are Mugshots Public Records Under OPRA?

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The recent publication of Tiger Woods’ mugshot after his DWI arrest led to a number of articles discussing the privacy issues arising from the easy availability of mugshots online. The articles all start with the premise that it’s appropriate to place booking photos online, because they are public records. But is this true in New Jersey?

Certainly mugshots of people arrested in New Jersey are easy to find; a quick Google search reveals websites, like mugshots.com, containing such photos, as well as articles from NJ.com and other New Jersey news sites that include mugshots. I’m not sure how these photos made their way online, because it appears that mugshots may be exempt from public access under OPRA.

No New Jersey court has addressed the question of access to mugshots under OPRA. However, the GRC has ruled that OPRA exempts photos of people arrested from disclosure. Melton v. City of Camden, 2011-233 (2013). The GRC based its decision on Executive Order 69 (Whitman), which exempts “fingerprint cards, plates and photographs and similar criminal investigation records….”

In addition, there is a strong argument that mugshots are subject to OPRA’s protection of the reasonable expectation of privacy. New Jersey courts typically look to FOIA law to help interpret OPRA. Federal courts have established, under FOIA, that individuals have a privacy interest in these photos and therefore mugshots may not automatically be released to the public. See Detroit Free Press v. U.S. Dept. of Justice (6th Cir. 2016) (mugshots are “humiliating” photos that convey a message that the individual is guilty and damage the person’s reputation).