Monthly Archives: December 2023

2023 OPRA Case Law Review

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The courts issued were many OPRA case rulings during 2023, but only a handful of precedential opinions. However, the three precedential opinions resolved crucial government records law questions.

In June, the Supreme Court issued a landmark opinion, Gannett v. Neptune Tp., holding that a successful common law records requestor is not entitled to an award of attorney fees. This ruling ended decades of uncertainty as to whether common law requestors, like OPRA requestors, may demand that public bodies pay their litigation fees.

The Appellate Division issued two published opinions involving OPRA. Just before the end of the year, the court determined that the custodian had properly withheld disclosure of a body worn camera video under OPRA’s exemption for the confidentiality of law enforcement records concerning a person who has not been arrested or charged with a crime. Fuster v. Tp. of Chatham. This holding rested on the court’s resolution of an issue of first impression–it concluded that the disclosure exemptions of the body worn camera statute do not rescind other exemptions provided for in OPRA.

Lipsky v. NJ Assn of Health Plans dealt with a frequent issue for OPRA custodians–how to respond to a request for records potentially contained within employees’ cell phones. The Appellate Division ruled on a discovery dispute, holding 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. This conclusion relied heavily on OPRA law. The Appellate Division emphasized that public employees have strong privacy interests in their phones’ contents, so where there’s an OPRA request 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.

Appellate Division: Police Body Cam Video Revealing Criminal Allegations against an Individual who was not Charged With A Crime Is Not Disclosable Under OPRA and the Common Law

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The Appellate Division, in a recent published opinion, addressed an issue of first impression: whether the exemptions from disclosure of a police officer’s body worn camera (BWC) footage, which are set forth in the statute governing such cameras, abrogate other disclosure exemptions found in OPRA. The court determined that although the BWC statute provides for withholding BWC videos under certain circumstances, OPRA’s exemptions also continue to apply to such videos.

Specifically, the court held that the custodian had properly withheld disclosure of a BWC video under OPRA’s exemption for confidentiality recognized by case law–here, the confidentiality accorded to law enforcement records concerning a person who has not been arrested or charged with a crime. Fuster v. Tp. of Chatham.

Fuster went to the police with allegations that a relative had engaged in criminal sexual misconduct. Fuster was interviewed about his allegations at the police station, and the interview was recorded by an officer using a BWC. The police and other agencies investigated further and eventually decided not to file charges against the relative.

Fuster subsequently filed with the police department an OPRA and common law request for the BWC video. It was not disputed that the video fell under OPRA’s exemption for the recognition by case law of the need for maintaining the confidentiality of investigative records regarding a person who has not been arrested or charged. Instead, the requestor argued that the OPRA exemption could not be applied, on the ground that the Legislature abrogated this exemption in the BWC statute, enacted in 2021.

The requestor’s claim rested on the fact that the BWC statute provides for a few specific situations where a BWC video may be withheld from public disclosure (none of which applied to the video in this case). Based on this, the requestor reasoned that the Legislature intended to rescind all other OPRA exemptions with regard to BWC videos.

The court rejected this argument; it concluded that the legislative purpose of the BWC statute was not to override OPRA, but rather to add some exemptions to OPRA’s existing exemptions. The court saw no basis for concluding that the BWC statute meant to abolish OPRA’s requirement that a record that would disclose the identity of a person who was never arrested or charged with a crime must be kept confidential.

The court also held that under the common law, the requestor’s interest in disclosure of the video did not outweigh the strong privacy and investigatory interests that support confidentiality of the record in question here.

New Appellate Division Opinion Addresses An Important Issue Regarding the Statute of Limitations for OPRA Actions

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In Dalnoky v. Pinelands Reg. School Dist., the court dealt with an OPRA issue of first impression: whether a requestor may refile his OPRA request, after the custodian denied the request and the requestor did not file a court complaint challenging this denial within the 45-day statute of limitations. The Appellate Division concluded that a requestor may not avoid the statute of limitations by filing the same OPRA request at a later date.

In this case, the custodian denied the OPRA request on October 23, 2020. The requestor subsequently filed the same OPRA request several other times during 2021 and 2022. He filed a lawsuit against the school district on December 6, 2021, which raised several claims, including a challenge to the denial of his OPRA requests.

The Appellate Division upheld the dismissal of the OPRA claim, for failure to file it with the trial court until well beyond the 45-day statute of limitations applicable to OPRA matters: the custodian denied the request in October 2020, and the complaint was filed in December 2021.

The requestor argued that the complaint was timely because it concerned the OPRA request he had made to the district in November 2021. But the court determined that this request was the same as the one that the district had denied in October 2020, which the requestor had not timely challenged. The court observed that it would “frustrate the purpose” of OPRA’s statute of limitations to “allow plaintiff to start a new forty-five-day period by simply making an identical request….”

I think the court’s determination is inarguably correct; indeed, there would effectively be no statute of limitations for OPRA complaints if appellant’s argument were accepted. However, there’s at least one trial court ruling that reached the opposite conclusion.

It’s unfortunate the Appellate Division’s opinion in Dalnoky is not precedential, to preclude other requestors from refiling their requests in an effort to avoid compliance with the statute of limitations for OPRA complaints.