Monthly Archives: February 2022

A Reminder from the Appellate Division: Custodians May be Fined Only if They Knowingly and Willfully Violate OPRA

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As I noted in 2019, there are few court opinions addressing what type of conduct will warrant fining a records custodian under OPRA’s penalty provision, N.J.S.A. 47:1A-11. In a recent unpublished opinion, McMorrow v. Boro of Englewood Cliffs, the Appellate Division emphasized that a penalty may not be imposed simply because the custodian erred in responding to the OPRA request. The statute requires more–a penalty is permissible only where the custodian knowingly and willfully violated OPRA, meaning that she had actual knowledge that her actions were wrongful, and these actions exhibited “conscious wrongdoing.”

In McMorrow, the trial judge ruled that the custodian violated OPRA in several respects in responding to a request. The trial judge also imposed a $2500 personal fine upon the custodian for unreasonably denying access to the requested records in a knowing and willful manner.

The custodian appealed, and argued only that the trial judge erred in penalizing her. She did not challenge the ruling that there were OPRA violations in responding to the request. As a result, the validity of the OPRA response was not at issue; the Appellate Division focused exclusively on the trial judge’s determination that the custodian should pay a fine.

The court reversed this ruling. It concluded that the trial judge erred by basing the decision on her view that the custodian should have handled the OPRA request in a better way, rather than on whether there was any conscious wrongdoing by the custodian. For example, the trial judge imposed the penalty partly because the custodian, citing her limited knowledge of the Boro’s computer system, needed an IT consultant to search for requested emails, and charged a special service fee for this person’s time and effort. The trial judge felt that the custodian should have been able to conduct the email search without the consultant’s involvement.

The Appellate Division concluded that the custodian’s limited knowledge of the computer system did not support a finding that she knowingly and willfully violated OPRA. The record simply did not show any conscious wrongdoing by the custodian, and therefore she could not be fined.

Appellate Division Issues Useful Opinion on Dealing with Requests for Attorney Invoices

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OPRA states that attorney bills must be disclosed, but they may be redacted to remove any attorney-client privileged information on them. I’ve always understood this provision to mean that it’s permissible to redact anything on the bill that would reveal something about legal advice or litigation strategy. For the first time, the Appellate Division (in an unpublished opinion) has addressed this aspect of OPRA, and confirmed that this interpretation of the attorney invoice language is correct.

In Mears v. Boro of Lawnside, the custodian redacted “every word of every line item” description of the attorney’s services on the invoices, as falling within the attorney-client privilege. The Appellate Division reviewed the invoices and concluded that none of the entries were covered by the privilege. The redactions here all shielded the type of descriptions that are typically put on an attorney’s bill, such as, for example, review correspondence; participate in phone conference with court, or with identified individuals; and draft letter brief in advance of oral argument. The court stated that these redactions violated OPRA, because the descriptions did not reveal “confidential information, trial strategy, or work
product.”

The Boro had also redacted certain expenses shown on the bills, for filing fees, mailing fees, and a monthly retainer. The court invalidated these redactions as well, again because these expenses did not disclose any privileged information.