New SCOTUS FOIA Opinion on Confidential Business Information May Affect OPRA

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The U.S. Supreme Court ruled yesterday that FOIA’s exemption for a business’s confidential commercial or financial information applies to information that the business treats as private and gives to the government under an assurance of privacy. Food Marketing Inst. v. Argus Leader Media.

While this holding sounds pretty mundane, the opinion is actually extremely significant. The Court invalidated the standard that the federal courts had consistently applied to this exemption for over 40 years–that commercial or financial information is confidential under FOIA only if its disclosure would cause substantial financial harm to the business. With the Supreme Court’s removal of the harm requirement, it will be easier for businesses (as well as individuals) to shield their commercial and financial information from disclosure under FOIA.

I think this FOIA opinion is going to have an impact on how future New Jersey cases rule on disputes involving the equivalent OPRA exemption for “commercial or financial information obtained from any source.” Similar to the Supreme Court’s analysis in Food Marketing Inst., the Appellate Division opinions that have considered OPRA’s exemption have looked to whether the information is treated as confidential, without regard to considerations of potential harm from disclosure.

However, there are few precedential New Jersey cases on this exemption. Future federal court rulings applying the Supreme Court’s new standard will likely be persuasive in a New Jersey case concerning whether particular business information may be withheld under OPRA’s exemption for commercial and proprietary information.

Court Holds That Identities of Those Who File Internal Affairs Complaints Against Police, and The Identities of the Subjects of the Complaints, Are Confidential

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Requestors often argue that OPRA requires the release of police internal affairs records, such as the names of people who file police misconduct complaints and the names of the officers who were the targets of the complaints. Both the Appellate Division and the GRC have rejected efforts to compel disclosing this information under OPRA, but because these opinions were not precedential, the issue remained unsettled.

That changed today: the Appellate Division issued a published opinion which holds that the names of the complainants, and the officers who were the subjects of these complaints, must be kept confidential.

In FOP v. City of Newark, the court upheld the validity of a Newark ordinance creating a civilian board empowered to investigate citizens’ complaints of police misconduct. In addition, the court determined that the ordinance had two invalid aspects, one of which is pertinent here–it permitted public disclosure of the identities of the complainants and the police officers.

The court said that allowing such disclosure is improper, as it is directly contrary to the requirement of the Attorney General’s Law Enforcement Guidelines that this information must remain confidential. And the court also specifically noted that the ordinance’s disclosure requirement did not comply with OPRA, which provides for the confidentiality of personnel records.

In addition to settling the question of the confidentiality of internal affairs information, this opinion should put to rest the argument made by some requestors, recently discussed here, that OPRA’s personnel exemption should not be applied to law enforcement officers.

Pet Owners’ Home Addresses Should Be Held Exempt Under OPRA

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Records custodians frequently confront the troublesome question of whether individuals’ home addresses must be disclosed under OPRA. For municipalities, this question seems to come up most often in requests for the names and addresses of those who have dog or cat licenses. Although OPRA’s protection of the reasonable expectation of privacy should usually preclude disclosure of this information, some trial court judges have ordered the release of pet owners’ names and addresses.

This article indicates that a judge recently rejected Jersey City’s argument that OPRA’s privacy provision bars disclosure of home addresses listed on dog licenses, and issued similar rulings in cases involving Secaucus and Kearny. According to the article, the requestor wants the information so that he can try to sell invisible fences to dog owners.

In this situation, where a requestor wants home addresses simply to solicit business, I think that OPRA’s privacy exemption prohibits release of this information.

There’s no question that home addresses in the possession of a public body are subject to individuals’ reasonable expectation of privacy. The Supreme Court has held that where this privacy expectation exists, OPRA requires that the privacy interest be balanced against the extent of the public need for disclosure of the information in question. In this situation, where the requestor’s only interest in disclosure is for his own commercial benefit, there is no public interest served in releasing the home addresses. As a result, the balancing test clearly favors confidentiality.

Hopefully, the Appellate Division will eventually correct the mistaken idea that under OPRA, a requestor’s commercial need for home addresses overrides the privacy interests of pet owners.

GRC: OPRA Requires Disclosure Of Bids Submitted By Unsuccessful Bidders

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Ruling on what it characterized as a “novel” issue, the GRC recently concluded that OPRA requires the disclosure of the bid documents submitted by the unsuccessful bidders for a public contract. Barth v. Rutgers (2017-121).

The request sought all proposals submitted to Rutgers in response to the RFP for Commencement Photography Services. Rutgers disclosed the winning proposal, but withheld the losing bids, arguing that disclosure would put vendors at a competitive disadvantage and also could lead to collusion among prospective vendors.

In its decision, the GRC noted that while it has upheld the confidentiality of bids during the vendor selection process, neither it nor a court has addressed whether OPRA mandates the disclosure of the losing bids after the contract has been awarded. Despite the novelty of the issue, the GRC engaged in little analysis; it simply stated that it saw no danger of competitive disadvantage or bidder collusion in this situation.

It’s unfortunate that the GRC did not explain the basis for this determination. I think there are strong arguments in favor of maintaining the confidentiality under OPRA of unsuccessful bidders’ documents. Making them automatically public creates a real risk of potential collusion and bid-rigging. And notably, losing bid records are exempt under FOIA. Hopefully, a future court or GRC case will address these concerns.

Appellate Division Again Rejects Attempt To Compel Disclosure of Personnel Records

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The Appellate Division recently upheld the denial of an OPRA request for the name of a State Trooper who had been discharged for misconduct. Libertarians for Transparent Govt v. NJ State Police.

This unpublished opinion applied settled law here; there’s simply no question that OPRA prohibits public disclosure of this confidential personnel information. What’s notable about this case is that it provides another example of an ongoing problem I’ve noted previously: some requestors seem to think that OPRA overrides legitimate personal privacy interests.

The requestor here, the Libertarians for Transparent Government organization, seems dedicated to getting a court to declare that OPRA’s personnel exemption is void, at least with regard to law enforcement officers. It argued in this case that OPRA’s exemption for disciplinary information should not apply to law enforcement. And the Appellate Division rejected this group’s similar effort to disregard personnel privacy in another OPRA case last year, involving a prosecutor’s office employee.

Trial Judge Limits Requestor’s Ability To Continue To File OPRA Requests And Litigation

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I’ve previously noted that public bodies often have to deal with OPRA requestors who file an excessive number of requests or pursue frivolous OPRA litigation. A recent Appellate Division opinion shows that trial judges have the authority to stop this kind of conduct.

Garcia v. Bergen Prosecutor and NJ OAG involved a requestor who had made a number of invalid OPRA requests, and then litigated the ensuing denials, in connection with his fruitless efforts to overturn his murder conviction. The Appellate Division affirmed the trial court’s denial of his latest OPRA (and common law) requests, which were invalid for a number of reasons.

Of particular interest here, the court also noted that the trial judge had granted the motion of the Bergen Prosecutor’s Office to preclude plaintiff from making future OPRA requests concerning his conviction, without getting court approval. The trial judge determined that, pursuant to a judge’s “inherent authority to prevent the filing of frivolous litigation,” prior court approval of the future filing of complaints was necessary.

The Supreme Court said years ago that the courts have the power to grant applications by public bodies to restrain requestors who file excessive, unreasonable public records requests. The Garcia case and a 2018 case show that some trial courts recognize the need to exercise this power to protect the public against burdensome and frivolous OPRA requests and litigation.

An Appellate Division OPRA Litigation Practice Reminder: Attorney Fee Awards

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The Appellate Division issued an unpublished opinion last week, Feld v. City of Orange, that contains two reminders of basic legal principles governing attorney fee awards in OPRA cases:

(1) Attorney fee awards to prevailing requestors are mandatory. For reasons not explained in the opinion, the trial court in this case denied an attorney fee award, even though it ordered that a number of records be released to the requestor. The Appellate Division reaffirmed the clearly settled rule that OPRA makes fee awards mandatory, not discretionary, when a requestor’s litigation causes disclosure of records.

(2) An attorney who represents himself, in any type of case, is not entitled to an attorney fee award. As a result, the requestor here, an attorney who represented himself, was not eligible for OPRA’s attorney fee award.

Appellate Division: GRC Properly Declined to Fine Custodian for OPRA Violation

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In an unpublished opinion, issued today, the Appellate Division affirmed the GRC’s conclusion that the City of Orange custodian should not be penalized for an untimely response to an OPRA request.

The City did not respond to the request for a certain invoice until about 6 weeks after the request was made. The court agreed with the GRC that no penalty was warranted for this violation of OPRA’s deadline, because the custodian did not willfully violate OPRA, and her actions did not result in an unreasonable denial of access. Despite the delayed response to the requestor, the custodian did make timely efforts to fulfill the request by contacting various employees to obtain the record in question. Also, the custodian did eventually provide responsive records to the requestor.

There are surprisingly few published court opinions dealing specifically with what type of conduct will subject a custodian to OPRA’s monetary penalties. In this case, the court cited a 2008 published opinion, which states that there must be a “positive element of conscious wrongdoing” to impose a fine. Since 2008, there have been no Supreme Court rulings, or other published Appellate Division opinions, on this issue.

OPRA Litigation Practice Reminder: How A Custodian Must Describe The Search for Responsive Records

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OPRA litigation, in both court and the GRC, often involves the question of whether the public body did an adequate search for responsive records. When this issue is raised, the custodian, and any other employees involved, may have to submit a certification detailing how they conducted the search. Although this seems to be a straightforward requirement, a recent Appellate Division case shows that some public bodies do not fully understand how the search must be described.

Carter v. Franklin Fire District 1 involved a GRC case in which the requestor challenged the adequacy of the public body’s search. The custodian’s certifications explained that he had asked various people to search for responsive records, including District employees and its IT vendor. The Appellate Division held that these certifications were deficient because they were not based on his personal knowledge. Because the custodian could not say how the other people conducted their searches, he could not properly certify, based on personal knowledge, as to the process and scope of the searches, and whether all responsive records were in fact produced.

This unpublished opinion does not break any new ground; the Appellate Division held in 2017, in a published opinion, that a similar certification submitted in court litigation describing an OPRA records search was invalid because it was not based on the certifying individual’s personal knowledge. Still, it’s helpful to have a reminder that in OPRA litigation, it’s not sufficient for custodians to describe searches that they were not personally involved in.

New York Times Editorial Board Makes The Case For Why Home Addresses Should Be Exempt

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All who deal with OPRA routinely face the difficult question of whether home addresses in government records are confidential. Although the courts have recognized that there’s a privacy interest in a home address, they have sometimes held that this personal information is not exempt under OPRA.

This recent opinion piece by the the New York Times editorial board, “Home Addresses are Up for Sale. Time to Take Back Your Privacy,” makes a compelling argument for why people have a strong interest in maintaining the privacy of their home addresses. The key point is that the easy accessibility of home addresses online is dangerous, as this information can be “weaponized” by “trolls…, stalkers, domestic abusers and criminals.”

For this reason, as the Times notes, sites like Facebook and Twitter prohibit the posting of a person’s address. I think New Jersey courts should similarly enforce OPRA’s privacy exemption, and prevent OPRA requestors from accessing individuals’ home addresses.