Supreme Court Issues Momentous Opinion: Information In A Database Is Government Record

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The Supreme Court issued a groundbreaking OPRA opinion today, holding for the first time that requests for reports generated from information within electronic databases are valid. Paff v. Galloway Tp.

The request in this case sought a log showing the sender, recipient, date and subject matter of emails of certain Township employees over a specific period of time. The Township, of course, had the emails covered by the request, but would have to create a document displaying the information from these emails in the manner demanded by the request. Based on the longstanding rule that OPRA does not require the creation of a new record, the Appellate Division held that this request was invalid. But as I predicted after watching oral argument, the Supreme Court disagreed.

The Court ruled that where information is stored electronically, extracting it does not involve the creation of a new record. This holding was based on the  conclusion that “[b]y OPRA’s language, information in electronic form, even if part of a larger document, is itself a government record.”

The Court recognized that although the request here was valid, the Township had to be given an opportunity to assert any exemptions or other arguments (such as substantial disruption of agency operations) that might preclude disclosure of the information in question.

As discussed in this post, the holding that OPRA requires the compilation of a report from a database has substantial consequences for public bodies and their records custodians. In addition,  the Supreme Court’s new opinion has problematic ramifications for other aspects of OPRA law and practice, which I’ll discuss in subsequent posts.

 

New Appellate Division Opinion Addresses The Deliberative Process Privilege

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One of OPRA’s most important exemptions is the deliberative process privilege, often referred to as the “ACD” exemption, i.e., “inter-agency or intra-agency advisory, consultative, or deliberative material” (NJSA 47:1A-1.1). The Appellate Division recently summarized the legal standards governing the deliberative process privilege in the published opinion of Larkins v. Solter.

Although the Larkins case involved a discovery dispute, not an OPRA claim, it is directly applicable to OPRA matters concerning the deliberative process privilege. As the court noted, the deliberative process privilege is one of the exemptions in OPRA. In fact, the court relied primarily on OPRA case law in explaining the requirements of the privilege.

The Appellate Division held that the deliberative process privilege covered the following records of the Office of the State Comptroller (OSC): an internal audit proposal, a planning memo and a risk/priority evaluation. These documents reflected the OSC’s internal, pre-decisional policy recommendations as to what should be audited and how the audit should be performed. These are precisely the kind of records that are confidential under the deliberative process privilege.

Appellate Division Rejects An Overbroad Request

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Public bodies often receive overbroad OPRA requests that don’t identify specific records. These requests are written in the style of discovery interrogatories, demanding all correspondence about a topic, or all correspondence involving various people or entities. The courts have ruled that this type of request is invalid.

The Appellate Division has once again upheld the denial of such an invalid request, in an unpublished opinion, Serringer v. Office of the Governor.

The request sought all correspondence between the Governor’s Office and Choose NJ, Inc. between 1/1/13 and 4/24/15. The court held that this is an invalid blanket request. The court said that the request’s failure to identify the subject matter of the correspondence rendered it improper, as answering the request would have required every employee of the Governor’s Office to search every file and email account for potentially relevant records.

 

Appellate Division: OPRA Suit Was Properly Dismissed Where It Was Filed After Requestor Received Records

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The Appellate Division issued a published opinion today that states what should be self evident: a requestor may not file an OPRA lawsuit for an award of attorney fees after it has received the records requested. Stop & Shop v. County of Bergen.

Stop & Shop submitted a request in 2011 and received various documents. It submitted a similar request in 2014. This time, the County’s response included a few documents that apparently should have been provided in response to the 2011 request. The court’s opinion does not explain why these records were not originally provided.

Stop & Shop filed suit claiming violations of OPRA and the common law and seeking attorney fees. The court held that this action was moot because plaintiff had received the records before it filed the complaint–in short, it had not been denied access to records.

The court rejected Stop & Shop’s argument that it was entitled to attorney fees, on the ground that its litigation was not the catalyst for the production of the documents.

As noted, this opinion was published, meaning it has precedential force. The opinion should serve as a valuable reminder of a principle that some requestors ignore: the purpose of OPRA litigation is to obtain records for the requestor, not simply an award of attorney fees.

Are Mugshots Public Records Under OPRA?

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The recent publication of Tiger Woods’ mugshot after his DWI arrest led to a number of articles discussing the privacy issues arising from the easy availability of mugshots online. The articles all start with the premise that it’s appropriate to place booking photos online, because they are public records. But is this true in New Jersey?

Certainly mugshots of people arrested in New Jersey are easy to find; a quick Google search reveals websites, like mugshots.com, containing such photos, as well as articles from NJ.com and other New Jersey news sites that include mugshots. I’m not sure how these photos made their way online, because it appears that mugshots may be exempt from public access under OPRA.

No New Jersey court has addressed the question of access to mugshots under OPRA. However, the GRC has ruled that OPRA exempts photos of people arrested from disclosure. Melton v. City of Camden, 2011-233 (2013). The GRC based its decision on Executive Order 69 (Whitman), which exempts “fingerprint cards, plates and photographs and similar criminal investigation records….”

In addition, there is a strong argument that mugshots are subject to OPRA’s protection of the reasonable expectation of privacy. New Jersey courts typically look to FOIA law to help interpret OPRA. Federal courts have established, under FOIA, that individuals have a privacy interest in these photos and therefore mugshots may not automatically be released to the public. See Detroit Free Press v. U.S. Dept. of Justice (6th Cir. 2016) (mugshots are “humiliating” photos that convey a message that the individual is guilty and damage the person’s reputation).

 

 

 

 

 

The Unsettled Issue Of How To Deal With OPRA Requests Involving A Third Party’s Confidentiality Interest

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Public bodies often struggle with requests for records in which third parties may claim a confidentiality interest. This problem may come up when a third party asserts a proprietary or investigatory interest in a record, and it occurs most frequently where a record contains information that may affect a person’s privacy interests. These requests present the custodian with a dilemma: under OPRA, the custodian must respect the privacy or confidentiality interest of any person, but the custodian typically is not able to explain the confidentiality arguments of that person.

The courts have not definitively said what procedure the custodian should follow when confronted with this situation. The Appellate Division has suggested that the party with the confidentiality interest should be given notice of the request (see, for example, Gannett v. Middlesex County), but the court has never expressly mandated this, nor has it explained precisely how the request should be handled by the public body after this notice is provided.

Hopefully, the Supreme Court will soon provide guidance on these issues. During oral argument this past January in IMO NJ State Fireman’s Assn Obligation to Provide Relief Applications, a pending case involving OPRA’s privacy exemption, the justices spent a lot of time discussing what procedure a custodian should follow when a third party has a privacy interest in the requested record. The fact that these questions came up doesn’t guarantee that they will be answered in the Court’s opinion, but it seems likely that the Court will deal with the procedural issues in some fashion.

 

A Review of Recent OPRA Law Enforcement Cases

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It’s amazing that during the first 15 years of OPRA’s existence, the courts issued only three precedential opinions on law enforcement records. But it can no longer be said that there’s little precedential law in this area. In the past several months, two important opinions on law enforcement and OPRA have come out, and several other significant law enforcement OPRA cases are about to be decided by the Supreme Court.

Here is a list of recent key law enforcement OPRA cases.

–Gilleran v. Tp. of Bloomfield (Supreme Court): held that building surveillance videos are completely exempt from disclosure.

–North Jersey Media v. Bergen Prosecutor (Appellate Division): held that a law enforcement agency may respond to an OPRA request for records concerning a possible pending investigation by saying it “can neither confirm nor deny the existence of responsive records.”

–Paff v. Ocean County Prosecutor (pending in Supreme Court): whether police vehicle dashcam videos must be disclosed.

-North Jersey Media v. Lyndhurst (pending in Supreme Court): whether various criminal investigatory records must be disclosed.

–Brennan v. Bergen County Prosecutor (pending in Supreme Court): whether OPRA and the common law compel disclosure of the names and addresses of people who successfully bid at an auction held by a prosecutor’s office

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Supreme Court To Review Whether Home Addresses Must Be Disclosed

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Custodians often struggle with OPRA requests that involve individuals’ home addresses. No court has issued a definitive, published opinion concerning OPRA’s privacy exemption and home addresses.

Fortunately, the Supreme Court is going to provide long-awaited guidance on this issue. On May 8th, the Court announced that it has granted review in Brennan v. Bergen County Prosecutor, which presents the question, according to the Court’s website, of whether OPRA and the common law compel disclosure of the names and addresses of people who successfully bid at an auction of public property.

See this post for a discussion of the Appellate Division’s opinion in the Brennan case.

 

Major OPRA Opinions On The Horizon

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The State Supreme Court’s current term is almost over, and the Court has not yet issued opinions in several of the OPRA cases that are before it. As discussed here, these cases involve critical issues, such as access to various law enforcement records, the extent of OPRA’s privacy exemption, the ability of public bodies to file declaratory judgment OPRA suits, the application of OPRA to volunteer fire companies, and custodians’ obligations to compile reports from databases.

Based on the Court’s usual scheduling, we will likely see its opinions in these cases in the next several weeks. So in the very near future, there will be major changes in OPRA law.

An Excellent New Opinion On OPRA Attorney Fee Awards

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OPRA cases often become a battle over attorney fees, with requestors seeking, and often receiving, large fee awards from public bodies. In many cases, requestors try to capitalize on a minor or unintentional mistake by the custodian as the basis for obtaining attorney fees.

An opinion issued today by Camden County Assignment Judge Katz makes clear that requestors are not entitled to receive attorney fees in every situation where the public body errs in responding to the OPRA request. Fees will not be awarded where the requestor unreasonably rushes to court in an effort to obtain such an award. Grieco v. Boro of Haddon Heights.

In this case, the public body provided some documents requested, but didn’t turn over one of them, due to an innocent and understandable mistake–the document “slipped through the cracks” when the custodian had to leave work suddenly due to a family medical emergency. The requestor did not contact the public body about the missing record, and instead filed suit two weeks after receiving the OPRA response. The public body did not realize it had failed to turn over the document until it was sued, and at that point it immediately provided it to the requestor.

The judge ruled that attorney fees should not be awarded in this situation, where the requestor chose litigation over trying to resolve the matter with a simple phone call. In accordance with the Supreme Court’s  opinion in Mason v. Hoboken, the judge said, this kind of uncooperative conduct violates OPRA and requires denial of fees to the plaintiff.

This is not a groundbreaking opinion–as Judge Katz stated, the facts of this case are similar to those in Mason, the 2008 Supreme Court opinion that established the standards governing entitlement to attorney fees under OPRA. Nevertheless, it’s useful to have a reminder from a court that requestors who rush into court are unlikely to obtain attorney fees. And this trial court opinion is published, giving it some precedential weight.