Monthly Archives: April 2024

A Significant Court Ruling: A Prolific OPRA Requestor is Not Allowed to Make OPRA Requests

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Over the past several years, an organization named the African American Data and Research Institute (AADARI) has been a frequent OPRA requestor and litigant. I don’t know how many requests AARDI has made, but it often files challenges to OPRA denials in the GRC and the courts. About half of the cases decided by the GRC in recent have listed as the complainant, “Rotimi Owoh, Esq. (o/b/o African American Data & Research Institute).” And the AADARI, always represented by Mr. Owoh, has litigated a number of Appellate Division and Supreme Court OPRA cases.

However, the Appellate Division recently held that the AADARI does not have the legal capacity to make OPRA requests or to authorize an attorney to act on its behalf, either to make OPRA requests or to file litigation. AADARI v. Hitchner, et al.

This case involved various OPRA and common law requests made by Attorney Owoh on behalf of AADARI. However, the record before the Appellate Division showed that AADARI is a corporation whose sole member is Owoh’s son, O.S., who suffers from a mental illness and is mentally incompetent. The court concluded the corporation did not have the legal ability to take any of the actions involved in the OPRA matters. The corporation can only take actions through its members, but AADARI’s only member, O.S., is not able to do so because of mental incompetence; according to the court, he “does not possess the capacity to retain Owoh, request the records, or decide to file suit.”

For the same reason, the court said, the corporation lacks the legal ability to file an OPRA court action. The entity cannot satisfy the court rule that its action be supported by the required verified complaint –no one in the corporation could attest to the truth of the claims. As a result, the Appellate Division dismissed the complaints.

It’s not clear what effect this ruling will have on future OPRA litigation. The AADARI could, of course, reorganize with new members to remedy the problem discussed above. But for now, this frequent requestor is precluded from making OPRA requests or litigating over prior denials of its purported requests.

A New Supreme Court OPRA Opinion–The County Prosecutors Association is Not Covered by OPRA or the Common Law Right to Public Records

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The Supreme Court recently issued a new opinion dealing with OPRA’s section that defines what is a public agency that’s subject to OPRA. The Court held that the County Prosecutors Association of New Jersey (CPANJ)–501(c) nonprofit made up of the 21 county prosecutors– is not a public agency under OPRA. The Court also held that CPANJ is not a public entity whose records are covered by the common law. ACLU v. CPANJ.

The Court determined that CPANJ is not (per OPRA’s definition of a covered public body) an “instrumentality” created by “political subdivisions.” The “core question” here was whether a county prosecutor is a “political subdivision.” The Court concluded (as did the Appellate Division) that a prosecutor is not a political subdivision, so CPANJ is not a public agency within the meaning of OPRA.

Significantly, the Court rejected the argument that CPANJ is covered by OPRA because it engages in governmental law enforcement functions. The Court emphasized that OPRA’s definition of a covered entity does not have a “governmental function test.” The only question, said the Court, is whether an entity falls within the language of OPRA’s definition of a public agency.

When I wrote about the Appellate Division’s decision in this case, I commented that the requestor’s effort to obtain records from CPANJ was actually unnecessary, given that it could use OPRA to seek from prosecutors’ offices, the Attorney General’s Office, or any other public agency these agencies’ communications with CPANJ. The Supreme Court alluded to this point in its opinion, noting that the “decision affirming the dismissal of the ACLU’s OPRA claim against CPANJ does not preclude the ACLU from requesting the same categories of documents from one or more public agencies subject to OPRA.”

Appellate Division Issues Useful Opinion on OPRA’s Exemption for Investigations in Progress

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The Appellate Division’s recent unpublished opinion in Benigno v. Office of the State Comptroller doesn’t break any new ground, but it contains helpful reminders of the legal standards that govern some common OPRA issues.

The requestor sought records concerning an investigation by the Office of the State Comptroller (OSC) into the training provided by the requestor’s company, “Street Cop Training,” to various police departments. (It’s not relevant to the OPRA issues, but here’s an article discussing the OSC’s report alleging the company conducted problematic training sessions).

The court upheld the denial of the request on various grounds. The records were confidential under OPRA’s exemption for an “investigation in progess.” The Appellate Division discussed how the records met all the criteria for this exemption: at the time of the request, the OSC was engaged in an investigation; the requested records were created as part of this investigation; and it would be “inimical to the public interest” to reveal the OSC’s “investigative playbook” to the party being investigated.

The court also held that the request was invalid as an overbroad request for information. The request consisted of demands for “all” documents, correspondence, etc. related to the investigation. As I’ve noted before, requestors keep making this type of improper request, even though the case law has consistently said that OPRA does not allow this.

Finally, the Appellate Division rejected the requestor’s effort to obtain the records under the common law, concluding that the need for confidentiality of the investigation far outweighed any interest in disclosure.

Supreme Court to Review Whether OPRA’s Exemptions Apply to Police Body Worn Camera Videos

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The Supreme Court recently announced that it has granted review of a case that presents the novel issue of whether OPRA exemptions apply to police body worn camera recordings. Fuster v. Boro of Chatham.

My post on the Appellate Division’s opinion in this matter explains this case in more detail. In brief, the requestor argues that the Legislature abrogated the application of OPRA exemptions to body worn camera (BWC) videos when it enacted the BWC statute in 2021.

OPRA clearly precludes disclosure of the video requested here, pursuant to the exemption established in case law that maintains the confidentiality of investigative records regarding a person who has not been arrested or charged. But the requestor argues that this OPRA exemption does not apply to a BWC, because the BWC permits withholding BWC videos only for certain reasons, which do not include this OPRA exemption.

The Appellate Division didn’t buy this argument, but it remains to be seen how the Supreme Court will interpret the interplay of the two statutes. The stakes in this case are quite high: acceptance of the requestor’s position would mean that OPRA effectively no longer applies to requests for police BWC recordings.

In addition to this important issue, the case presents another question that may have a significant impact on law enforcement agencies. In granting review, the Supreme Court also said that it will consider whether the BWC video in question should be released under the common law. This will require the Court to examine whether the strong privacy and confidentiality interests that typically support not disclosing investigatory records should apply here.