In a published, precedential opinion, the Appellate Division held that the right to request records under OPRA is not limited to citizens or residents of New Jersey. Scheeler v. Atlantic County Municipal JIF, etc.

The court’s ruling is consistent with the view I had previously expressed, that OPRA cannot be reasonably interpreted as applying only to citizens of New Jersey. Judge Reisner’s opinion cogently demonstrates that the Legislature did not intend to impose a citizenship requirement; instead, the statute allows any person to make an OPRA request.

In August 2017, the Appellate Division held, for the first time, that trial judges have the authority to impose the financial penalties in OPRA for individuals who knowingly violate the statute. North Jersey Media v. Office of the Governor. This opinion upended the practice that had been followed since OPRA’s enactment, under which only the GRC imposed these fines.

When the opinion was issued, I noted that the Appellate Division’s holding seems incorrect, as it creates the odd (and I think legally invalid) situation where private plaintiffs may file suit for monetary penalties that are to be paid to the State, rather than to the plaintiffs themselves.

The court didn’t address this problem in the North Jersey Media opinion, but the Appellate Division recently agreed with my point; it stated that it is legally improper for private plaintiffs to file Superior Court actions to enforce statutory penalties. Goldman v Critter Control of NJ. This was not an OPRA case, but it dealt with the same issue–whether a private plaintiff could file a trial court complaint for imposition of penalties provided for by a statute.

Like OPRA, the statute in question in Goldman, the Prevention of Cruelty to Animals Act, contains penalties for violations and says that the penalties are to be enforced under the Penalty Enforcement Law. The Goldman court concluded the reference to the penalty enforcement statute means individuals cannot file civil actions for penalties, because that statute’s purpose is to authorize administrative agencies to enforce penalties and have the fines paid to the State Treasury.

The Appellate Division explained, “[i]t would make little sense for plaintiff to be able to file a civil action and then not be able to enforce a judgment or keep any portion of the penalties.”

Yet even though it does not make sense, OPRA plaintiffs are allowed to file suits seeking financial penalties that they do not receive.

The Appellate Division issued a short, unpublished opinion today which resolves a significant and previously-unaddressed question–whether settlement negotiation records of public bodies must be disclosed under OPRA. The court held that William Paterson University properly rejected disclosure of an unfiled and unexecuted draft litigation settlement agreement. Libertarians for Transparent Government v. Wm. Paterson U.

The document in question was an email containing a red-lined version and a clean version of the proposed settlement agreement between the parties. As of the date of the OPRA request, the parties had not agreed upon the language in the red-lined version.

The court stated that until a settlement agreement is signed, it is a draft document, subject to revision and negotiation, and therefore exempt under OPRA. In this case, the settlement was not fully executed until a few weeks after the settlement documents at issue, leading the court to rule that these documents were exempt from disclosure.

Anyone who has ever been involved in litigation would probably consider it obvious that all of the parties’ communications leading up to the final, signed settlement agreement, including drafts of language for the settlement, are confidential. But there are OPRA requestors who do not accept this principle; I’m aware of many OPRA requests that sought to make public the records of litigants’ settlement negotiations.

This claim comes up because there’s no precedential OPRA case law directly stating that public agencies’ settlement negotiation records are exempt records. Unfortunately, because this new Appellate Division is unpublished, there still is no direct precedent. I anticipate that some requestors will continue to assert the frivolous position that they are entitled to disclosure of these records.

The Appellate Division recently issued a precedential OPRA opinion of great significance to all public bodies that hold public meetings. The court ruled that the draft minutes of such a meeting are not government records; the minutes are public records only after the public body approves them. Libertarians for Transparent Govt v. Govt Records Council.

The law is settled that draft documents are deliberative and therefore exempt from disclosure. The appellant in this case argued that the draft minutes of public meetings should be treated differently, based on the idea that they are simply a summary of what occurred at the meeting. The court rejected this position. It stated that the draft minutes are, like any other draft document, the writer’s recommended summary, which the members of the public body may revise and supplement after their review.

The court also emphasized that the entire draft minutes document is confidential, and is not subject to release with partial redactions.

The Appellate Division recently issued an odd precedential OPRA opinion. Conley v. NJ Dept. of Corrections. The case presented a routine issue covered by settled law, but the court ignored the existing law and instead applied an incorrect analysis that will surely cause confusion and problems in future OPRA matters.

The request sought from the Department of Corrections a monthly report showing statistics of inmate grievances at various state prisons. Federal and state law require that such statistical records be maintained, and the DOC had previously provided the requestor with reports containing this information. However, this time the DOC responded that it had a new database system in which the monthly reports “are no longer generated or available.” Instead of providing a report, the agency produced statistics drawn from the database.

In response to the requestor’s GRC complaint that the DOC should have provided the monthly reports, the DOC said that there were no responsive records. The GRC affirmed on this basis.

This case is plainly governed by the Supreme Court’s 2017 Paff v. Galloway opinion, requiring that agencies put together requested reports from information in databases. The only question for the court in Conley, therefore, was whether the information sought by the requestor was in DOC’s database.

Inexplicably, the Appellate Division did not mention the Supreme Court’s opinion. Instead, it invented a new analysis that has no basis in the law: the court said that the DOC should have considered “the public-access ramifications” of modifying how it stored its records, and it ordered the agency to produce the requested reports.

The opinion rests on the conclusion that OPRA prohibits public bodies from changing their recordkeeping systems if the change makes it more difficult to access public information. The basis for this interpretation, according to the court, is that government transparency would otherwise be “vulnerable to bureaucratic manipulation.”

This interpretation of OPRA is simply wrong. The statute provides access to existing government records; it does not require that the government keep its records in any particular way.

The court’s new interpretation will create problematic OPRA claims. Requestors will be able to use the Conley opinion to argue, for example, that a public body violated OPRA by failing to maintain certain information, or even by changing its previous recordkeeping practices.