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.