Monthly Archives: July 2023

A Rare Court Opinion On OPRA’s Security Exemption

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In 2016, the Supreme Court, in Gilleran v. Bloomfield Tp., for the first time addressed OPRA’s exemption for security information which, if disclosed, would jeopardize security of a building or create a risk to a person’s safety. The Court held that the exemption applies to footage from a building’s surveillance camera. Since this Supreme Court opinion, there has been almost no case law dealing with this security exemption, except for a single, unpublished 2018 Appellate Division opinion that determined the exemption covers computer security information.

The Appellate Division recently issued another unpublished opinion concerning the security exemption. Zezza v. Evesham Tp. Bd. of Ed. Although this opinion is not precedential, and breaks no new legal ground, it’s still worth noting, in view of the lack of case law in this area of OPRA.

The court held that the Board incorrectly denied an OPRA request for 35 seconds of footage from surveillance cameras on the grounds of a school, because it had made no showing that release of the video would compromise security. The Board did not submit any certifications describing security concerns, and in addition, the trial judge concluded that disclosing such a small amount of video footage would not expose any “surveillance weaknesses.”

The Appellate Division correctly determined that under these circumstances, there’s no basis to apply the security exemption. It noted that in Gilleran, the Supreme Court expressly said that to rely on this exemption, “the governmental entity must establish that the security tool (here, the camera) produces information that, if disclosed, would create a risk to the security of the building or the persons therein because of the revealing nature of the product of that tool.”

Appellate Division: No OPRA Violation Where Custodian Was Temporarily Unable To Search For Records Due To Covid Shutdown

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In an unpublished opinion, the Appellate Division determined that a public body acted appropriately, and did not violate OPRA’s response deadline, where it told the requestor it would search for the requested records after the end of a Covid shutdown. C.E. v. Elizabeth Public School Dist. This is the first appellate opinion to deal with the effect of pandemic closures on the handling of an OPRA request.

The OPRA request was submitted to the School District in May 2020, when all District schools and offices were closed indefinitely due to Covid. As a result, the District advised the requestor, “we will respond to your request for records when circumstances allowing for the reopening of the District and access to records permit.” It explained that the search of the records sought could only be done on the premises. The District eventually provided the requested records in March 2021, shortly after being able to return to the office.

The appeal concerned the requestor’s claim for attorney fees, based on the catalyst theory–that its litigation, which it had filed in the Law Division in 2020, caused the release of records in 2021. The Appellate Division rejected this argument because the District had not refused to disclose any records; instead, its answer to the OPRA request was that it would produce responsive records when able to do so. The requestor’s litigation, said the court, did not cause the District to release the records.

The requestor attempted to avoid this conclusion by arguing that the District’s initial response should be deemed a denial of the request, because the District did not fulfill the request within OPRA’s 7-business day deadline. The court found this argument to be flawed, because the Legislature suspended this OPRA response deadline during the Covid emergency. Instead of requiring the custodian to respond within a specific time frame, the statute stated that a custodian must make a reasonable effort under the circumstances to respond. The Court concluded here that the District did make a reasonable effort, given the impact of the Covid-related closure on its ability to search for responsive records.

Supreme Court to Review Whether OPRA Requires Disclosure of Residents’ Email Addresses

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The Supreme Court recently granted review of a consequential OPRA issue: the applicability of OPRA’s privacy provision to residents’ personal email addresses. Since OPRA’s enactment, municipalities have been frustrated by the absence of precedential case law governing requests for residents’ email addresses. The Supreme Court will now remedy this situation, in Rise Against Hate v. Cherry Hill.

Specifically, the question in the case, according to the Court’s website, is:

“Are email addresses submitted by members of the public to a public agency to sign up for electronic newsletters and notices subject to disclosure under the Open Public Records Act?”

In this case, the Appellate Division held that OPRA’s privacy section prohibited disclosure of the email addresses. As I explained here, the Appellate Division determined that people have an expectation of privacy in their email addresses, and these privacy interests outweighed the requestor’s interest in disclosure, where residents provided their email information to the municipalities for receipt of “periodic, generic newsletters and notices.”

Although this case only involves email addresses that were submitted for receipt of newsletters and notices from municipalities, presumably the Supreme Court’s analysis will also provide guidance on how to handle an OPRA request for a personal email address that a public body has received, for any other reason.

A Reminder from the GRC: Officials’ Private Calendars are Exempt from Disclosure

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In 2005, the Appellate Division held that an official’s appointment calendar is exempt under OPRA. There’s been no change in the law since this ruling, but requestors still occasionally seek disclosure of this type of calendar.

The GRC recently upheld the denial of such a request, which asked for disclosure of the Outlook calendars of the State Registrar of Vital Statistics. Since is was undisputed that these contained only internal information, rather than public meeting schedules, the GRC held that they were exempt, based on the Appellate Division’s 2005 opinion and the GRC’s 2017 decision in McDonald v. Jersey City (rejecting request for Mayor Fulop’s calendar).