Once Again, The Appellate Division Rejects Overbroad Requests

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Requestors persist in filing overbroad OPRA requests, despite settled law that such discovery-like demands are invalid. The Appellate Division recently dealt with an egregious example of this in Port Auth. PBA v. Port Auth. of NYNJ.

According to the opinion, the litigation began in 2016, and involved a 78-page complaint concerning over 50 OPRA requests.The appeal involved 38 requests, almost all of which were obviously improper. One example illustrates the way the requests were written: it sought records of meetings participated in by a named person and any employee of the FAA, since 2009. The court rejected this request, and the many similar requests here, as invalid under OPRA.

Also of note is that even though the plaintiff prevailed on a few of its requests at the trial level, the Appellate Division held that it was entitled to only a minuscule attorney fee award. Due to the requestor’s limited success in the litigation, the court awarded $5400, far below the $46,000 sought by the requestor.

2018 Review: A Year of Significant OPRA Cases

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The many landmark cases issued in 2017 made that year the most important year in OPRA’s history. Although 2018 did not match that standard, it nevertheless saw many major court rulings on crucial OPRA issues.

The Supreme Court issued two OPRA opinions. Brennan v. Bergen Prosecutor said that bidders at public auctions lack a reasonable expectation of privacy in their names and addresses. Paff v. Ocean Prosecutor also dealt with OPRA’s privacy exemption, with regard to police dashcam videos, and in addition held that these videos are exempt criminal investigatory records.

The Appellate Division issued several important published opinions on a variety of OPRA topics, including the right of nonresidents of New Jersey to make OPRA requests; the confidentiality of student records; the confidentiality of draft meeting minutes; and attorney fees.

And as in previous years, OPRA litigation resulted in a large number of non-precedential decisions that people who deal with OPRA need to know about. In 2018, the Appellate Division ruled on a number of meaningful OPRA matters in unpublished opinions.

Emails Are Not Subject to OPRA Simply Because They’re Stored In a Government Computer

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A recent unpublished Appellate Division opinion is a reminder of a fundamental OPRA rule: OPRA applies only to records made, maintained, kept or received in the course of official business. As a result, emails sent over a government computer, that don’t involve government business, are not subject to OPRA.

The Appellate Division case dealt with an OPRA request for emails exchanged between certain government officials concerning PAC money. Carter v. Franklin Fire Dist. No. 1. Although the topic of the emails had nothing to do with the official business of the public body, the requestor argued that OPRA applied to these emails because they were maintained in the public body’s computer system. The court rejected this argument; it agreed with the GRC that the OPRA request was not for government records, because the emails did not involve official government business.

Appellate Division: Domestic Violence Offense Report is Confidential under OPRA

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In an opinion issued today, the Appellate Division held that a domestic violence offense report, which an officer is required to file after responding to a domestic violence call, is exempt under OPRA. North Jersey Media Group v. Passaic County Prosecutor’s Office. The court determined that this report is exempt because the Domestic Violence Act and the court rules provide full confidentiality to domestic violence records.

Unfortunately, as has occurred with several other fairly recent Appellate Division cases involving OPRA issues of first impression, the opinion is not published and therefore not precedential.

Supreme Court’s New OPRA Opinion Protects Privacy Interests Concerning MVRs

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The Supreme Court’s recent opinion in Paff v. Ocean County Prosecutor’s Office is an important victory for privacy rights, even though the Court rejected the specific claim made in the case, that the arrested driver’s privacy would be violated by release of the MVRs of her arrest.

How can an opinion rejecting a privacy claim be a win for privacy interests? Because the Court expressly stated that as a general matter, people have a reasonable expectation of privacy in MVRs. The Court made clear that in all cases involving the potential release of such a video, the privacy interests of the individuals shown must be considered.

With this language, the Court corrected the problematic Appellate Division opinion in the Paff case. The appellate court had held that people have no privacy interest whatsoever with regard to MVRs, stating: “Drivers and passengers in vehicles operating on public roadways do not have a reasonable expectation of privacy in an MVR recording.” Fortunately, the Supreme Court did not leave in place this erroneous conclusion, and instead issued an opinion that appropriately protects the privacy rights of people shown in police videos.

The driver in the Paff case failed to satisfy her specific claim of privacy because she presented no explanation for her position. But the key point is that the Court recognized that those shown in MVRs can make legitimate claims that their privacy may be harmed by disclosure of the video.

Supreme Court: Police MVRs Pertaining To Criminal Investigations Are Exempt Under OPRA

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In Paff v. Ocean County Prosecutor’s Office, issued today, the Supreme Court held that OPRA’s criminal investigatory record exemption applies to police dash cam recordings (MVRs) when the MVR is made pursuant to an order of the local police chief. The effect of this ruling is that the public cannot obtain, under OPRA, any MVR connected with a criminal investigation.

The issue in this case was whether a police chief’s order requiring his department’s officers to make MVRs in certain situations means the MVR is required by law to be made. If a record is required by law to be made, it does not satisfy the criminal investigatory record exemption. The Court ruled that an order issued by a police chief does not have the force of law, and therefore the exemption applied.

This opinion, together with the Court’s 2017 Lyndhurst opinion, means that all police MVRs pertaining to a criminal investigation are exempt under OPRA. In Lyndhurst, the Court held the MVR to be exempt because there was no requirement, either by the local police department or in Attorney General directives, that the MVR be made. In Paff, the Court made clear that MVRs are exempt even if a police department does have a requirement that MVRs be made.

An MVR may still be accessible under the common law, depending on the circumstances of the particular case. The Court remanded the Paff case for a determination of whether the MVRs should be disclosed under the common law.

The Court also held that OPRA’s privacy exemption did not preclude disclosure of the MVRs. The driver had objected to release on privacy grounds, but identified no specific privacy concerns. The Court indicated that there may be cases where a person’s reasonable expectation of privacy will warrant withholding or redacting a police video, but a generic privacy-based objection will not be sufficient.

Dealing With Requestors Who Submit An Excessive Number Of Requests

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Some OPRA requestors abuse the system by burying public bodies under an avalanche of requests. See this post for an example, concerning a requestor who, over two months, submitted 380 requests to Teaneck, seeking nearly every possible category of municipal information.  Despite the obviously harassing nature of this volume of requests, the trial judge declined to issue an injunction to limit this person’s requests, based on the incorrect belief that the law does not authorize judges to take such action.

An Appellate Division opinion issued today shows that trial judges do indeed have the authority to place limits on requestors who submit too many requests. O’Boyle v. DiLorenzo.

O’Boyle submitted almost 900 requests to the borough of Longport over a several month period. The limited staff of this small borough attempted to respond, but the court noted that some employees were overwhelmed by the resulting workload and quit.

The Borough filed an order to show cause to bar O’Boyle from submitting additional document requests. The trial judge ruled that he could continue to submit requests, but also ordered that the Borough was not obligated to respond to any requests within OPRA’s time limit.

O’Boyle later filed suit against the Borough and various individuals, complaining about a number of different actions taken against him. One claim involved the OPRA matter; he argued the Borough violated Equal Protection by denying him his rights under OPRA.

The trial judge dismissed all of O’Boyle’s claims, and the Appellate Division affirmed for the reasons expressed by the trial judge. The court’s opinion does not describe the trial judge’s opinion or explain its legal reasoning. Nevertheless, this appellate case is of interest, in showing that a trial judge can place restrictions on an individual who submits an abusive amount of OPRA requests.

The Extent of OPRA’s Privacy Exemption Is Not Clear, Despite Recent Supreme Court Opinions

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Since OPRA’s enactment, public bodies have struggled with requests that affect privacy interests. When presented with such a request, custodians must determine if there’s a reasonable expectation of privacy, and then apply a balancing test, weighing the strength of the privacy interest against the need for public disclosure of the information in question. The case law does not provide definitive guidance on handling these issues, because courts have reached differing conclusions on what information is entitled to privacy, depending on the facts of the particular case.

The two opinions issued by the Supreme Court over the past year on privacy under OPRA illustrate this problem. Last summer, in Matter of NJ State Firemen’s Assn Obligation to Provide Relief Applications  it upheld the confidentiality of a firefighter’s financial relief award, emphasizing the strong privacy interests that individuals have in their personal financial information.

In May 2018, the Court ruled that bidders at a public agency’s auction of forfeited property have no reasonable expectation of privacy in their names and home addresses, and therefore this information must be disclosed, without even applying the balancing test. Brennan v. Bergen County Prosecutor’s Office. The Court concluded that people bidding at an agency’s public auction could not reasonably expect their names and addresses to be private.

These cases, while important, have little applicability to OPRA requests that don’t involve bidders’ information or an individual’s financial status. Perhaps the Supreme Court’s upcoming opinion in Paff v. Ocean County Prosecutor, which concerns the privacy interests of those shown in police videos, will provide broader guidance on the contours of OPRA’s privacy provision.

Appellate Division Upholds Confidentiality of State Police Gun Permit Application Investigatory Procedures

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The Appellate Division today rejected the effort of a requestor to obtain disclosure of the investigatory procedures used by the police in evaluating applicants for firearms permits. NJ 2d Amendment Soc. v. State Police. The court held that portions of the State Police’s Firearms Applicant Investigation Guide are not accessible, based on a Department of Law and Public Safety regulation that provides an OPRA exemption for investigative techniques where their disclosure would compromise the ability to effectively conduct investigations.

This unpublished opinion doesn’t have precedential force, but it does provide a useful example of the proper way to handle OPRA litigation where the defense is that release of a particular record would harm law enforcement interests. The State Police submitted certifications from lieutenants which explained why the material in the Guide needed to be confidential. The trial and appellate courts relied on these “detailed and credible” certifications in upholding the agency’s redactions.

A Summary of Important, But Unpublished, Recent Appellate Division OPRA Opinions

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This blog covers both published Appellate Division OPRA opinions as well as interesting unpublished opinions by the court. Although unpublished opinions often contain guidance about OPRA matters, they are not binding statements of the law. New Jersey law is clear that unpublished Appellate Division opinions are not precedential.

I’ve noticed that over the last few years, the court has issued a number of opinions that deal with significant or new OPRA issues, but unfortunately are unpublished. All of these opinions address important questions that often come up under OPRA, for which there is no precedential case law.

Here are several significant unpublished opinions that were issued in 2017 and 2018:

–Libertarians for Transparent Govt v. Ocean County Prosecutor–underlying reasons for employee’s resignation are confidential.

–Paff v. Bergen County–records of internal affairs investigations are confidential.

-Libertarians for Transp. Govt v. Wm. Paterson U.–settlement records are confidential.

–Kennedy v. Montclair Bus. Improvement Dist.–requestor is not entitled to attorney fees where his litigation does not result in access to records.

–NY Public Radio v. Governor’s Office–confidentiality of various Governor’s Office records

-Scheeler v. NJDCF–employee resumes may be redacted.