The Appellate Division recently issued a precedential OPRA opinion of great significance to all public bodies that hold public meetings. The court ruled that the draft minutes of such a meeting are not government records; the minutes are public records only after the public body approves them. Libertarians for Transparent Govt v. Govt Records Council.

The law is settled that draft documents are deliberative and therefore exempt from disclosure. The appellant in this case argued that the draft minutes of public meetings should be treated differently, based on the idea that they are simply a summary of what occurred at the meeting. The court rejected this position. It stated that the draft minutes are, like any other draft document, the writer’s recommended summary, which the members of the public body may revise and supplement after their review.

The court also emphasized that the entire draft minutes document is confidential, and is not subject to release with partial redactions.

The Appellate Division recently issued an odd precedential OPRA opinion. Conley v. NJ Dept. of Corrections. The case presented a routine issue covered by settled law, but the court ignored the existing law and instead applied an incorrect analysis that will surely cause confusion and problems in future OPRA matters.

The request sought from the Department of Corrections a monthly report showing statistics of inmate grievances at various state prisons. Federal and state law require that such statistical records be maintained, and the DOC had previously provided the requestor with reports containing this information. However, this time the DOC responded that it had a new database system in which the monthly reports “are no longer generated or available.” Instead of providing a report, the agency produced statistics drawn from the database.

In response to the requestor’s GRC complaint that the DOC should have provided the monthly reports, the DOC said that there were no responsive records. The GRC affirmed on this basis.

This case is plainly governed by the Supreme Court’s 2017 Paff v. Galloway opinion, requiring that agencies put together requested reports from information in databases. The only question for the court in Conley, therefore, was whether the information sought by the requestor was in DOC’s database.

Inexplicably, the Appellate Division did not mention the Supreme Court’s opinion. Instead, it invented a new analysis that has no basis in the law: the court said that the DOC should have considered “the public-access ramifications” of modifying how it stored its records, and it ordered the agency to produce the requested reports.

The opinion rests on the conclusion that OPRA prohibits public bodies from changing their recordkeeping systems if the change makes it more difficult to access public information. The basis for this interpretation, according to the court, is that government transparency would otherwise be “vulnerable to bureaucratic manipulation.”

This interpretation of OPRA is simply wrong. The statute provides access to existing government records; it does not require that the government keep its records in any particular way.

The court’s new interpretation will create problematic OPRA claims. Requestors will be able to use the Conley opinion to argue, for example, that a public body violated OPRA by failing to maintain certain information, or even by changing its previous recordkeeping practices.

The law is settled that draft documents are confidential under OPRA’s exemption for deliberative material, but requestors still seek access to such records. In an opinion issued today, the Appellate Division upheld the denial of access to a draft report. North Jersey Media v. Clifton.

The report in question was from an accounting firm to the City of Clifton, concerning issues related to changes in the City’s payroll practices. The court determined that the report was clearly a draft, emphasizing that the report underwent several revisions at Clifton’s request. The court then applied the law that predecisional drafts are protected from disclosure under the exemption for deliberative material.

This case is another example of a problem I’ve previously discussed–the cost to the public of meritless OPRA litigation pursued by requestors. Here, the City had to spend public funds defending, in both the trial and appellate courts, its clear legal right to withhold a draft document.

The past year saw the largest number of important OPRA legal developments in the history of the statute.  While 2018 is unlikely to produce as many landmark cases as 2017, there will certainly be major court opinions that will have a substantial impact on public bodies. Also, I think this year will produce more OPRA litigation than ever before.

The Supreme Court has two highly significant OPRA cases on its docket that will be decided in 2018:

-Brennan v. Bergen County Prosecutor- The Court will consider whether OPRA compels disclosure of the names and addresses of people who successfully bid at an auction of public property. This will be the first time the Court will address a question that has plagued OPRA custodians and their attorneys since OPRA was enacted–what is the extent of privacy protection that must be afforded to home addresses?

-Paff v. Ocean County Prosecutor- This case also involves a critical privacy issue: do people shown in police dash cam videos have privacy rights? In addition, the Court will decide a key law enforcement record issue: does the criminal investigatory record exemption apply to dash cam video, where the video is made pursuant to an order of a local police chief?

In addition to these Supreme Court cases, I anticipate that a large number of important OPRA opinions will be issued by the Appellate Division and trial courts in 2018. I think this year will involve even more OPRA litigation than in past years, as requestors will seek to test how to interpret the many major court opinions that were issued in 2017. This should result in many issues of first impression being presented to the courts.