Monthly Archives: May 2018

Supreme Court Holds That OPRA Requires Disclosure of Names And Addresses Of Bidders At A Public Auction

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The Supreme Court ruled today that bidders at a public agency’s auction of forfeited property have no reasonable expectation of privacy in their names and home addresses, and therefore this information must be disclosed under OPRA. Brennan v. Bergen County Prosecutor’s Office.

The Appellate Division had determined that the balancing test applicable to OPRA privacy claims weighed in favor of privacy here, but the Supreme Court stated that the balancing test did not apply in this case. The Court said the balancing analysis is to be conducted only where there is a “colorable claim” that access to the information would invade an “objectively reasonable expectation of privacy.”

The bidders here had no such colorable argument, according to the Court; it concluded that people bidding at an agency’s public auction–“a quintessential public event”–could not reasonably expect their names and addresses to be private. As a result, there was no basis to withhold this information under OPRA’s privacy exemption.

Unfortunately, the Court did not resolve the question that has caused difficulty for custodians since OPRA’s enactment–are home addresses exempt from disclosure under OPRA’s privacy protection? The Brennan opinion deals only with bidders’ information, and offers no guidance on how to handle the many other situations where an individual’s address is shown on correspondence or some other document held by a government entity.

Appellate Division: OPRA Requestors Do Not Have To Be New Jersey Citizens

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In a published, precedential opinion, the Appellate Division held that the right to request records under OPRA is not limited to citizens or residents of New Jersey. Scheeler v. Atlantic County Municipal JIF, etc.

The court’s ruling is consistent with the view I had previously expressed, that OPRA cannot be reasonably interpreted as applying only to citizens of New Jersey. Judge Reisner’s opinion cogently demonstrates that the Legislature did not intend to impose a citizenship requirement; instead, the statute allows any person to make an OPRA request.

Should Requestors Be Permitted To File Court Actions For Imposition Of OPRA’s Penalties?

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In August 2017, the Appellate Division held, for the first time, that trial judges have the authority to impose the financial penalties 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.

When the opinion was issued, I noted that the Appellate Division’s holding seems incorrect, as it creates the odd (and I think legally invalid) situation where private plaintiffs may file suit for monetary penalties that are to be paid to the State, rather than to the plaintiffs themselves.

The court didn’t address this problem in the North Jersey Media opinion, but the Appellate Division recently agreed with my point; it stated that it is legally improper for private plaintiffs to file Superior Court actions to enforce statutory penalties. Goldman v Critter Control of NJ. This was not an OPRA case, but it dealt with the same issue–whether a private plaintiff could file a trial court complaint for imposition of penalties provided for by a statute.

Like OPRA, the statute in question in Goldman, the Prevention of Cruelty to Animals Act, contains penalties for violations and says that the penalties are to be enforced under the Penalty Enforcement Law. The Goldman court concluded the reference to the penalty enforcement statute means individuals cannot file civil actions for penalties, because that statute’s purpose is to authorize administrative agencies to enforce penalties and have the fines paid to the State Treasury.

The Appellate Division explained, “[i]t would make little sense for plaintiff to be able to file a civil action and then not be able to enforce a judgment or keep any portion of the penalties.”

Yet even though it does not make sense, OPRA plaintiffs are allowed to file suits seeking financial penalties that they do not receive.

Court Sanctions Requestor’s Attorney for Frivolous OPRA Litigation

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I’ve previously noted that the necessity of defending meritless OPRA lawsuits imposes substantial costs on the public. But a recent Appellate Division opinion shows that public bodies have the ability to recoup the expense of litigating an OPRA suit, by seeking monetary sanctions against requestors who pursue frivolous claims.

In Valentin v. Boro of Penns Grove, the requestor sued the Borough, claiming it had not responded to his OPRA request. In fact, within several days of receiving the request, the custodian had notified the requestor that the responsive documents could be picked up.

The Borough’s attorney notified the requestor’s attorney of this, and demanded that the complaint be withdrawn. The attorney refused, stating that the custodian had not produced all requested records.

The Appellate Division upheld the trial judge’s order, issued pursuant to the frivolous litigation court rule, that the requestor’s attorney pay the Borough’s attorneys fees of $1725. The court said this sanction was appropriate because the requestor’s attorney, knowing that the complaint falsely stated there had been no response made to the OPRA request, nevertheless proceeded with the litigation.

The court also rejected the argument that a sanction wasn’t warranted because the requestor believed that not all responsive records had been provided in the response to the OPRA request. The court characterized this belief as not “objectively reasonable;” it concluded that the Borough had properly responded to the request.

This aspect of the opinion is especially notable. It’s not uncommon for requestors to pursue litigation based on their belief that they did not receive all responsive records. As this case shows, such a belief must be reasonable. Compliance with this requirement by requestors will forestall frivolous OPRA suits and save taxpayers’ dollars.