Monthly Archives: January 2023

New Published Appellate Division Opinion Provides Guidance on How to Handle OPRA Requests That Require Search of Employees’ Cell Phones

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The Appellate Division issued an interesting published opinion that deals with a discovery issue, but also contains useful guidance for handling OPRA requests that involve searching employee cell phones for responsive records. The court made clear that it is up to the the employees themselves to conduct the search of their phones.

Lipsky v. NJ Assn of Health Plans dealt with a dispute over a discovery request to a State agency for records potentially contained within agency employees’ cell phones. The Appellate Division held that a party in pending litigation may not compel a non-party State agency to turn over its employees’ State-issued and personal cell phones to the party’s expert for forensic examination. The court determined that this violates civil discovery legal requirements as well as the employees’ constitutional privacy rights.

In explaining the reasons why the trial court’s order was erroneous, the court relied in part on OPRA law. It noted that under the discovery rules, the agency has no obligation to produce data from employees’ devices unless it has “possession, custody or control” over that data. Under OPRA, the court said, the agency only has such possession, custody or control over the government records that are within the employees’ phones. While these records are subject to disclosure under OPRA, the court recognized that employees’ phones typically also contain much personal, confidential information which is not a government record.

The Appellate Division emphasized that public employees have strong privacy interests in their phones’ contents, so where there’s an OPRA request (or discovery demand) for records from employees’ phones, it is improper for the agency to search the device for responsive records. Instead, to protect the privacy interests at stake, the agency must ask employees to conduct the search of their devices for responsive records.

This is the first time a court has directly addressed, in a published opinion, how an agency should handle an OPRA request that involves searching an employee’s cell phone.


A Recent Appellate Division Case Is An Example Of Unnecessary OPRA Litigation

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The Appellate Division’s recent opinion in Owoh v. Boro of East Newark involved the unfortunate situation of a requestor pursuing (and losing) an entirely unnecessary appeal.

The case involved requests to three different municipal police departments for electronic information concerning complaints and summonses. The GRC ruled that the departments properly denied these requests, applying a published Appellate Division opinion, Simmons v. Mercado, which held that police departments are not the custodians of the records in question.

However, at that time the Supreme Court was reviewing whether this Appellate Division decision was correct. During the pendency of the GRC case, the Supreme Court had granted a petition for certification in Simmons. The GRC could have temporarily suspended its review of the Owoh appeals, pending issuance of the Court’s opinion in Simmons, which would have been dispositive of the GRC case. Instead, for reasons not explained in the Appellate Division opinion, the GRC simply decided the case without waiting for the Supreme Court’s resolution of Simmons.

The Supreme Court issued its Simmons opinion less than a month later. It reversed the Appellate Division and held that police departments must disclose complaint-summonses records.

The effect of this opinion, of course, was that the police departments would have to grant the OPRA requests made in Owoh. The requestor could have obtained the records expeditiously simply by submitting new OPRA requests to the police departments, relying on the Supreme Court’s opinion. But it did not do so; instead, it appealed the GRC decision, arguing that the Supreme Court’s opinion required reversal of the agency’s ruling. The Appellate Division rejected this argument, concluding that the GRC decision was correct at the time it was issued, and there was no basis to apply the Supreme Court’s subsequent opinion to the GRC case retroactively.

As can be seen, this appellate litigation was unnecessary. The GRC could have precluded it by waiting for the Supreme Court to resolve the issue, and the requestor could have avoided it by submitting a new OPRA request.

This is a prime example of a problem I’ve previously discussed– that public bodies often must face pointless OPRA litigation.