Monthly Archives: August 2017

Appellate Division Again Rules That MVR Created Under Police Chief’s Order Is Not A Criminal Investigatory Record

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In an unpublished opinion, Ganzweig v. Lakewood Twp., an Appellate Division panel followed the appellate court’s 2016 published opinion in Paff v. Ocean County Prosecutor and held that OPRA’s criminal investigatory exemption does not apply to MVRs that are operated under a local police department’s policy.

Paff and Ganzweig present an issue that the Supreme Court will decide in its upcoming 2017-18 term: whether a police chief’s directive concerning MVRs is “required by law” and therefore does not satisfy one of the statutory requirements for a record covered by the criminal investigatory exemption. Judge Reisner dissented in Ganzweig, disagreeing with the Paff majority opinion’s view that a police chief’s directive meets the “required by law” standard.

The Supreme Court has not yet scheduled Paff for argument. I assume that Ganzweig will also go to the Supreme Court, due to the dissenting opinion. Presumably, the Supreme Court will decide this case together with the Paff case, since they involve the same issue.

Recent Case Law Emphasizes Importance of Attorney General Law Enforcement Directives Under OPRA

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Do the Attorney General’s Law Enforcement Directives–policies that apply to all police departments throughout the State–establish exemptions under OPRA? Recent case law has answered this question affirmatively; the Attorney General’s directives are legal requirements that serve as a basis for confidentiality of government records.

The impact of these directives on OPRA requests had been somewhat in question because it was unclear whether such policies are binding legal requirements, and therefore should be treated the same as a regulation or other similar enactment. In the Lyndhurst opinion issued a few weeks ago, the Supreme Court settled this question. It held that these directives, issued by the State’s chief law enforcement officer, have “the force of law for police entities” (quoting and agreeing with the Appellate Division’s opinion in O’Shea v. Twp. of W. Milford).

This means that a confidentiality requirement in an Attorney General Directive is an exemption under OPRA. The Appellate Division and the GRC have reached this conclusion. In a March 2017 opinion, Paff v. Bergen County, the Appellate Division upheld the denial of an OPRA request to a sheriff’s office for the names of complainants and the officers who were the targets of the complaints, on the ground that this information must be kept confidential under the Attorney General’s Internal Affairs Guidelines.

The GRC takes the same position. See Reagan v. Camden County Prosecutor (July 25, 2017).

 

Appellate Division: Trial Judges Are Authorized To Impose OPRA’s Fines

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The Appellate Division recently held, for the first time, that trial judges have the authority to impose the financial penalties set forth in OPRA for individuals who knowingly violate the statute. North Jersey Media v. Office of the Governor. This opinion upended the practice that had been followed since OPRA’s enactment, under which only the GRC imposed these fines.

This is a very unfavorable ruling for public entities. As discussed here, allowing requestors to bring penalty claims in trial court actions will dramatically increase the risks and costs for public agencies in litigating OPRA cases.

The Appellate Division’s conclusion that OPRA permits requestors to file court complaints demanding that public officials be fined strikes me as incorrect. It creates the odd situation where private plaintiffs may file suit for monetary penalties that are to be paid to the State, not to the plaintiffs. This appears to be an unconstitutional delegation of the State’s power to private parties.

Presumably, the Attorney General will seek Supreme Court review in this case. But for the foreseeable future, public bodies face litigation not just over whether an OPRA request was properly denied, but also over whether employees involved in that OPRA request should be fined.

 

Appellate Division Rejects Common Law Request For Criminal Investigation Records

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In a recent unpublished opinion, the Appellate Division upheld the denial of a request, made under the common law, for all documents pertaining to a criminal investigation. Paff v. NJ State Police.

The court’s decision is unremarkable; it’s based on the well-settled law that the interest in confidentiality of criminal investigations outweighs a requestor’s general interest in getting information about the investigation. What’s interesting about the case is that it confirms what I’ve previously noted–contrary to the press reports hailing the Supreme Court’s Lyndhurst opinion as requiring transparency of police operations, in fact the Supreme Court’s opinion ensures that there will be less public access to most police records.

The Paff court rejected the requestor’s claim that Lyndhurst compelled disclosure of the records in question. Instead, the Appellate Division said, the Supreme Court made clear that typically, the interest in confidentiality of law enforcement investigatory records outweighs the requestor’s interest in disclosure.

I anticipate that Paff is the first of many cases in which courts will rely on Lyndhurst to reject OPRA and common law efforts to obtain law enforcement records.

 

Supreme Court: Volunteer Fire Companies Are Not Subject To OPRA

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Today the Supreme Court issued its fourth OPRA opinion in the past 6 weeks. In Verry v. Franklin Fire Dist. 1, the Court held that volunteer fire companies that are members of fire districts are not entities covered by OPRA. The Court said that although fire districts are subject to OPRA, and they supervise volunteer fire companies, this doesn’t make volunteer companies themselves subject to OPRA.

The Supreme Court’s Firemen’s Assn. Opinion Is A Victory For Privacy Rights

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I recently presented a seminar to a large group of government attorneys and record custodians on OPRA’s privacy provision. One of the themes of my presentation was that the courts have issued only a handful of precedential opinions on this aspect of OPRA, providing agencies with little guidance on how to handle privacy issues.

Coincidentally, at practically the same time I was making my presentation, the Supreme Court issued an important opinion on OPRA’s privacy exemption, Matter of NJ State Firemen’s Assn Obligation to Provide Relief Applications. As I predicted after the oral argument of this case, the Court came down firmly on the side of privacy in this case, and denied the request for disclosure of a firefighter’s relief award.

This opinion is especially notable because it shows that the Court gave heavy weight to the privacy interests that individuals have in their personal financial information.  The Court emphasized the strong need to protect these privacy interests and saw no real public interest in access to the information in question.

It can no longer be said that there’s a lack of judicial guidance on OPRA and privacy. The Supreme Court has clarified that privacy interests must be favored by public agencies, despite OPRA’s general policy of public access to information held by the government.

Two Major Opinions Issued On Same Day

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On August 3d, both the Supreme Court and the Appellate Division issued a major OPRA opinion.

The Supreme Court, in Matter of NJ State Firemens Assn Obligation to Provide Relief Applications, held that public bodies may not file OPRA declaratory judgment actions after denying an OPRA request. The Court left open the possibility that declaratory judgment may be filed by public bodies before the request is denied, but did not decide that question.

The Court also held that the records in question, showing financial relief awards made to needy firefighters, are confidential under OPRA’s privacy provision.

The Appellate Division’s published opinion held, for the first time, that trial judges have the authority to impose the financial penalties set forth in OPRA for individuals who knowingly violate the statute. North Jersey Media v. Office of the Governor.

For more information about the Supreme Court case, see this post, and see here for more information about the Appellate Division case.