Monthly Archives: January 2020

Appellate Division Rejects OPRA Privacy Exemption Claim

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A recent Appellate Division opinion in an OPRA case surprisingly rejected an appropriate effort by a public body to protect individuals’ privacy interests. Frega v. Boro of Saddle River.

The Borough of Saddle River approved a “deer cull” for the 2018-19 hunting season. The requestor, who was opposed to the deer cull, submitted an OPRA request for the names of the hunters who would be participating, as well as the addresses of properties on which the hunting was authorized.

The Boro denied the request under OPRA’s privacy exemption, due to threats that had been made against supporters of the deer cull. The record showed that people opposed to the cull had made various threatening statements toward Boro officials for their decision to allow it; for example, one Facebook post said, “They are sick and disgusting people . . . Now is the time to stop . . . . Everyone would like to beat the hell out of the entire bunch of them . . . they will get it back in spades. . . . Watch . . . . people are very upset.”

The Appellate Division upheld the trial judge’s decision rejecting the privacy argument. The court determined that individuals participating in the deer hunt had no colorable claim of privacy. It concluded that this case presented the same situation as in Brennan v. Bergen Prosecutor, where the Supreme Court said that a public auction, held by a public body, is a “quintessential public event,” and therefore bidders at such an auction have no reasonable expectation of privacy under OPRA. Unfortunately, the Frega court did not explain how hunting in a deer cull that the government has approved is the same as bidding on property at a government-run auction.

The Appellate Division also concluded that the requestor’s interest in obtaining the names of participants in the deer cull outweighed the affected individuals’ privacy interests. The court determined that they had no real privacy interest, because the risk of harm to these individuals was speculative.

The idea that the potential harm here was too speculative to warrant protection under OPRA strikes me as untenable, in view of the many threats of violence that were in the record. The court downplayed these menacing comments as simply “hyperbolic expressions of animosity toward the practice of hunting.” But that’s exactly why there was a genuine risk of harm from disclosure of hunters’ identities: it’s reasonable to assume that this extreme anger at the practice of hunting will be directed at the individuals who actually engage in the hunting.

Moreover, there appears to be no legitimate reason for the requestor to obtain the names of hunters. The opinion says only that the requestor needs this information to inform herself about the efficacy and risks of the deer hunt, without explaining how having participants’ names serves this purpose. In my view, the privacy balancing test clearly favors withholding the hunters’ names.

The Appellate Division’s opinion is not precedential. However, it’s another example of the problems faced by public bodies in attempting to comply with OPRA’s mandate that they protect citizens’ legitimate privacy interests.

Judicial Guidance Needed: What’s A Reasonable Search For Responsive Records Under OPRA?

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The law is clear that a custodian must make a reasonable search for records that are responsive to an OPRA request. However, there’s no law that defines what constitutes a reasonable search, and there are no court cases that provide guidance as to what a custodian must do to satisfy the reasonable search requirement.

The absence of standards governing searches leads to unnecessary, wasteful litigation. A recent Appellate Division opinion illustrates this problem. In Lawyers Comm. for 9/11 Inquiry v. State Police, the requestor asked the State Police for records related to the FBI’s investigation of a suspicious van in East Rutherford during the afternoon of September 11, 2001. The State Police denied the requests on the basis that it had no responsive records.

The requestor challenged this denial in the Law Division, claiming that the State Police did not make a sufficient search for records. In the trial court, the State Police submitted certifications from three officers, who explained how and where they searched, and stated that they found no responsive records. For reasons not described in the Appellate Division opinion, the trial judge required the State Police to submit additional certifications further detailing the search for records. The trial judge ultimately ruled that the State Police made a reasonable search and had “looked in the most logical places where anything related to the 9/11 inquiry would be.”

The Appellate Division affirmed. It noted that the requestor offered nothing but speculation in response to the State Police’s certifications, and that its argument that the search was improper lacked sufficient merit to warrant further discussion.

As can be seen, even though the requestor had no basis to indicate that the search was unreasonable, the agency still had to go to great lengths to prove to the court that its search was reasonable. If there were case law providing guidance as to what is a reasonable search, this matter might have been resolved without litigation. But in the absence of such standards, the requestor felt free to pursue litigation, in both the trial and appellate courts, despite lacking a basis for claiming that the State Police failed to make a legally proper search.

Appellate Division Holds, For The First Time, That Police Body Camera Footage Is Not Exempt As Criminal Investigatory Record

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In an opinion issued today, the Appellate Division held that police body-worn camera footage does not fall within OPRA’s criminal investigatory records exemption. Rivera v. Tp. of Bloomfield.

This exemption applies only to a record pertaining to a criminal investigation that is not required by law to be made, maintained or kept on file. The footage here pertained to a criminal investigation into a 2017 police shooting, but the Appellate Division determined that the “not required by law” prong of the exemption was not satisfied. The court said that an Attorney General Law Enforcement Directive governing police body cameras constituted such a requirement of law, in accordance with Supreme Court OPRA precedent.

Although this is the first appellate opinion to address the important issue of OPRA requests for body camera video, the opinion is unpublished and therefore not precedential. Perhaps the court saw no need to publish the opinion because the law is settled that Attorney General directives have the force of law under OPRA, and the body camera directive clearly requires that footage be made, maintained and kept on file.

It’s important to note that the court did indicate that body camera footage may be withheld, under appropriate circumstances, even though the criminal investigatory exemption does not apply. The pertinent AG Directive gives the prosecutor the discretion to determine, on a case-by-case basis, that law enforcement interests require maintaining confidentiality of the video. However, in this case, according to the court, the prosecutor did not explain the need to maintain confidentiality.

2020 Will See Major OPRA Court Opinions Affecting Law Enforcement Agencies

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The Supreme Court will hear argument this year in two separate cases that challenge longstanding OPRA law protecting the confidentiality of law enforcement officers’ personnel information. The requestors in these cases essentially seek to have the Supreme Court hold that OPRA’s personnel exemption doesn’t apply to law enforcement officers.

FOP v. City of Newark raises the issue of whether records of police internal affairs investigations are entirely exempt under OPRA. And the requestor in Libertarians for Transparent Govt. v. State Police contends that OPRA compels the disclosure of the name of law enforcement officers who were terminated for misconduct.

The Supreme Court’s opinions in these two cases will obviously have a major impact on law enforcement employees. But the treatment of the personnel records of all other types of government employees also is at stake in these cases. The Court is being asked to interpret OPRA’s personnel exemption, which does not differentiate between law enforcement and other public employees. As a result, the Court’s ruling will necessarily affect access to all personnel information under OPRA.