Visitor Logs And OPRA

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The Trump Administration recently announced that it would not release to the public the logs showing the names of visitors to the White House. Its position apparently is that FOIA does not require disclosure of the logs, because all White House records are exempted from that statute.

Would a record of visitors to a government office be disclosable under OPRA? No court has ruled on this issue, but it seems to me this would not be a public record. It’s settled law that officials’ appointment calendars are exempt under OPRA. A visitor log reveals the same confidential information as an appointment calendar–the identity of those who meet with government officials.

Court Upholds Privacy of OPRA Requestors’ Home Addresses, Telephone Numbers and Email Addresses

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The Appellate Division ruled today that a public body correctly withheld, under OPRA’s privacy provision, the home addresses, telephone numbers and email addresses of individuals who had submitted OPRA requests. Wolosky v. Somerset County.

The court determined that although OPRA requests themselves are government records, this does not mean that personal information shown in an OPRA request must be disclosed. Instead, OPRA’s privacy protection applies to such information. The Appellate Division conducted the balancing test required under OPRA’s privacy provision, and concluded that requestors’ personal contact information should not be disclosed.

Notably, the court indicated that the requestor here had shown no genuine need to obtain disclosure of this personal information. This case is another example of how some requestors seek to use OPRA to infringe on individuals’ privacy rights.

The Appellate Division’s opinion continues the recent trend of courts holding, in non-precedential opinions, that home addresses are protected by OPRA’s privacy section. See this post for further discussion of this case law.

Appellate Division: OPRA Violation Doesn’t Automatically Justify Attorney Fee Award

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Every OPRA request presents the risk that a public body will have to pay the requestor’s attorney fees if the request is not answered properly. The courts generally construe OPRA’s attorney fee provision in favor of requestors; one judge even awarded fees in a case where the requestor obtained no records, simply because the custodian had not fully described the correctly withheld records.

The Appellate Division’s recent opinion in Paff v. Bergen County is a rare example of a court declining to apply OPRA’s attorney fee provision so broadly. As discussed here, this opinion is important because it held, for the first time, that internal affairs records of law enforcement agencies are confidential. In addition, the court said that the requestor could not obtain attorney fees, even though the custodian had not fully complied with OPRA in handling the request.

The OPRA violation was the custodian’s failure, in initially responding to the request, to give the basis for the redactions. This explanation was given after the complaint was filed. The Appellate Division ruled that this omission did not warrant the imposition of attorney fee liability. It noted that the requestor did not obtain the records that he had sought and litigated over– the names of officers and complainants shown in the internal affairs complaints–and therefore had not prevailed in his OPRA case.

It’s rare for a court to deny fees where there’s an OPRA violation, but the result here is consistent with the legislative intent that only requestors who truly succeed in their litigation efforts should receive attorney fees.

Significant Appellate Division Ruling: Internal Affairs Records Are Exempt From Disclosure

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Today the Appellate Division held that records of internal affairs investigations of  law enforcement officers are exempt from disclosure under OPRA. Paff v. Bergen County.

The court specifically upheld the denial of a request for the names of complainants and the employees who were the targets of the complaints, on the ground that this information must be kept confidential under the Attorney General’s Internal Affairs Guidelines.

As discussed here, the GRC has previously said, correctly in my view, that internal affairs investigation and complaint records are also exempt because they are personnel records. The Appellate Division did not address this basis for confidentiality in the opinion issued today.

The Paff v. Bergen opinion is extremely significant. Although requestors frequently seek internal affairs records, this is the first appellate case to deal with the issue. Given the importance of this ruling, it’s surprising that the court did not make it a published, precedential opinion.

Trial Judge Declines To Issue Injunction Against Requestor Who Submitted An Abusively Excessive Amount of OPRA Requests

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In an unpublished opinion, a trial judge denied Teaneck’s application to enjoin a requestor from filing OPRA requests, despite the fact that the requestor had submitted an excessive and abusive amount of OPRA requests. Twp. of Teaneck v. Jones.

The judge’s decision rests on the premise that OPRA does not authorize public bodies to obtain such an injunction. But this misses the key point that the Supreme Court has said that the courts do have the power to restrain requestors who file excessive, unreasonable public records requests.

It’s hard to imagine a clearer example of the need for such judicial control than the Jones case. In just two months, Jones submitted 380 requests, all of which were multi-part. These requests, “the size and heft of a phone book,” according to the judge, sought nearly every possible category of municipal information. And there seems to be no dispute that the requestor did not really want any records, but instead had filed this avalanche of requests to harass Township officials.

There’s no indication whether Teaneck plans to appeal. This case shows that appellate guidance is necessary, to confirm that public bodies may seek injunctions where OPRA requestors abuse the system.

Supreme Court Seems Ready To Rule That OPRA Requires Custodians To Create New Reports From Computer Databases

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The Supreme Court recently held argument in Paff v. Galloway Twp., concerning whether OPRA permits a request that a public body create a log showing the sender, recipient, date and subject matter of emails of certain Township employees over a specific period of time.

This is a rare case where the outcome can be predicted based on the oral argument. The justices raised no objections to the argument of the requestor’s attorney that this is a valid OPRA request because it simply involves extracting certain information already shown in the emails existing in the Township’s computer system. And the justices were politely contemptuous of the counter-argument that this is an invalid request for the creation of a new record.

Unfortunately, there was hardly any mention during the argument of the consequences of holding that this type of request is permissible. As I’ve explained, see this post, the result will be that OPRA requestors can compel public bodies to produce reports from the information contained in computer databases, with the data organized according to the requestor’s preference. Custodians will effectively be research staffers for requestors, obligated to compile for requestors reports that did not previously exist.

GRC: A Mayor’s Private Calendar is Confidential under OPRA

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The GRC recently upheld Jersey City’s denial of an OPRA request for Mayor Fulop’s private meetings calendar. McDonald v. Jersey City. The GRC decision is based on Supreme Court and Appellate Division opinions holding that officials’ private calendars are confidential under OPRA.

This ruling shouldn’t be noteworthy, since New Jersey law has been clear for many years that OPRA does not permit the disclosure of public officials’ private calendars. However, in this case the GRC initially overlooked the relevant court opinions and issued a decision saying that the mayor’s calendar had to be disclosed. Fortunately, the agency subsequently realized that it had erred, reconsidered its previous determination and issued a decision that complies with OPRA case law.

Appellate Division: OPRA Requests Are Public Records

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On January 27, the Appellate Division issued an opinion holding that OPRA requests themselves are government records that are publicly accessible under OPRA. Whether OPRA requests are confidential had never been previously addressed by the Appellate Division. Scheeler v. Office of the Governor.

The court rejected the State’s argument that there is a blanket exemption under OPRA for OPRA requests. However, the court recognized that there may be cases where specific requests could be confidential, on the basis of the privacy exemption or the competitive advantage exemption.

A Few Comments on the Supreme Court Argument in the Fireman’s Assn Relief Case

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The Supreme Court heard argument a few days ago in IMO NJ State Fireman’s Assn Obligation to Provide Relief Applications. I have a few comments, based on my observation of the argument.

-It wasn’t clear how a majority of the justices felt about the question of whether public bodies may file OPRA declaratory judgment suits. In any event, as I’ve said before, I think the answer to this question is likely to have little impact on future OPRA cases.

-The justices were sympathetic to the privacy concerns raised by the requestor’s demand for records showing whether an applicant had received financial assistance. The justices all seemed to agree that the records in question are similar to those showing a person’s receipt of welfare assistance, which are strictly confidential. I think the Court may very well reverse the Appellate Division and hold that OPRA’s privacy exemption precludes release of the fireman’s relief records.

-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, such as, is the custodian required to notify that party of the OPRA request? It looks like the Court may issue much needed guidance on how to handle this problem.

Privacy Rights Under Attack By OPRA Requestors

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Since the enactment of OPRA, many requestors have tried to evade the statute’s protection of the privacy of personal information found in public records. Two recent Appellate Division cases involve examples of the egregious disregard that some requestors have for privacy rights.

In Wolosky v. Sparta, Bd. of Ed., decided January 13th, the records in question contained references to various students, identified by their initials. Despite having no need for the students’ names, and despite the obvious privacy rights of young students, the requestor argued to the appellate court that OPRA requires disclosure of the students’ full names.

Similarly, in Scheeler v. NJDOE, issued January 19th, the requestor demanded disclosure of school board members’ home addresses, despite having no need for these addresses.

While the court rejected the requestors’ claims in both cases, these are not precedential opinions. The absence of precedent means that nothing prevents future requestors from continuing to file litigation aimed at weakening OPRA’s limits on the disclosure of individuals’ private information.