A Reminder from the Appellate Division: When Internal Affairs Reports are Requested, Make a Complete Analysis of the Factors of the Common Law Balancing Test

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In its 2022 opinion in Rivera v. Union County Prosecutor’s Office, the Supreme Court held that police internal affairs (IA) records are exempt under OPRA, but may be disclosable under the common law right to know. A common law records request requires the public body to conduct a balancing test, which evaluates whether the public interest in disclosure outweighs the need for confidentiality of the record.

The Appellate Division recently issued an unpublished opinion reversing the denial of a common law request for IA reports, because the trial judge had failed to conduct a complete analysis of the factors of the balancing test. 21st Century Media v. Ewing Twp.

In Rivera, the Supreme Court directed that in conducting the balancing test with regard to a request for IA records, courts and record custodians must consider certain factors: those that apply to all common law record requests (referred to as the “Loigman” factors), as well as other factors that relate specifically to IA reports. The additional considerations for IA records, identified by the Rivera Court, are:

-the nature and seriousness of the misconduct, and whether it was substantiated;

-the nature of the discipline imposed on the official;

-the nature of the official’s position, and

-the official’s record of misconduct.

In 21st Century Media, neither the town nor the trial judge referred to these criteria in denying the request for disclosure of IA reports concerning certain indicted police officers. The town’s denial letter said only that the public interest in disclosure “does not outweigh the rights of [the officers] to a fair and impartial trial, and the presumption of innocence….” The judge’s ruling that the records should not be released did not mention this rationale, and instead was based on the conclusion that there was no showing the officers had engaged in repeated misconduct.

The Appellate Division reversed, because the judge had not evaluated the common law balancing test factors. The Appellate Division remanded the case to the trial judge, ordering the judge to review the IA reports in camera and apply the Rivera and Loigman factors to determine whether the IA reports should be released.

This opinion shows that a denial of a common law request for IA reports (or any other type of government record) will not be upheld if the public body fails to demonstrate that it took the various balancing test factors into account. And although 21st Century Media is an unpublished opinion, it is clearly consistent with precedential case law. In fact, the Supreme Court in 2023 expressly cautioned that record custodians must “carefully review each [common law] request and provide a response that comports with the law.” Gannett Satellite Network v. Neptune Tp.

2023 OPRA Case Law Review

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The courts issued were many OPRA case rulings during 2023, but only a handful of precedential opinions. However, the three precedential opinions resolved crucial government records law questions.

In June, the Supreme Court issued a landmark opinion, Gannett v. Neptune Tp., holding that a successful common law records requestor is not entitled to an award of attorney fees. This ruling ended decades of uncertainty as to whether common law requestors, like OPRA requestors, may demand that public bodies pay their litigation fees.

The Appellate Division issued two published opinions involving OPRA. Just before the end of the year, the court determined that the custodian had properly withheld disclosure of a body worn camera video under OPRA’s exemption for the confidentiality of law enforcement records concerning a person who has not been arrested or charged with a crime. Fuster v. Tp. of Chatham. This holding rested on the court’s resolution of an issue of first impression–it concluded that the disclosure exemptions of the body worn camera statute do not rescind other exemptions provided for in OPRA.

Lipsky v. NJ Assn of Health Plans dealt with a frequent issue for OPRA custodians–how to respond to a request for records potentially contained within employees’ cell phones. The Appellate Division ruled on a discovery dispute, holding that a party in pending litigation may not compel a non-party State agency to turn over its employees’ State-issued and personal cell phones to the party’s expert for forensic examination. This conclusion relied heavily on OPRA law. The Appellate Division emphasized that public employees have strong privacy interests in their phones’ contents, so where there’s an OPRA request for records from employees’ phones, it is improper for the agency to search the device for responsive records. Instead, to protect the privacy interests at stake, the agency must ask employees to conduct the search of their devices for responsive records.

Appellate Division: Police Body Cam Video Revealing Criminal Allegations against an Individual who was not Charged With A Crime Is Not Disclosable Under OPRA and the Common Law

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The Appellate Division, in a recent published opinion, addressed an issue of first impression: whether the exemptions from disclosure of a police officer’s body worn camera (BWC) footage, which are set forth in the statute governing such cameras, abrogate other disclosure exemptions found in OPRA. The court determined that although the BWC statute provides for withholding BWC videos under certain circumstances, OPRA’s exemptions also continue to apply to such videos.

Specifically, the court held that the custodian had properly withheld disclosure of a BWC video under OPRA’s exemption for confidentiality recognized by case law–here, the confidentiality accorded to law enforcement records concerning a person who has not been arrested or charged with a crime. Fuster v. Tp. of Chatham.

Fuster went to the police with allegations that a relative had engaged in criminal sexual misconduct. Fuster was interviewed about his allegations at the police station, and the interview was recorded by an officer using a BWC. The police and other agencies investigated further and eventually decided not to file charges against the relative.

Fuster subsequently filed with the police department an OPRA and common law request for the BWC video. It was not disputed that the video fell under OPRA’s exemption for the recognition by case law of the need for maintaining the confidentiality of investigative records regarding a person who has not been arrested or charged. Instead, the requestor argued that the OPRA exemption could not be applied, on the ground that the Legislature abrogated this exemption in the BWC statute, enacted in 2021.

The requestor’s claim rested on the fact that the BWC statute provides for a few specific situations where a BWC video may be withheld from public disclosure (none of which applied to the video in this case). Based on this, the requestor reasoned that the Legislature intended to rescind all other OPRA exemptions with regard to BWC videos.

The court rejected this argument; it concluded that the legislative purpose of the BWC statute was not to override OPRA, but rather to add some exemptions to OPRA’s existing exemptions. The court saw no basis for concluding that the BWC statute meant to abolish OPRA’s requirement that a record that would disclose the identity of a person who was never arrested or charged with a crime must be kept confidential.

The court also held that under the common law, the requestor’s interest in disclosure of the video did not outweigh the strong privacy and investigatory interests that support confidentiality of the record in question here.

New Appellate Division Opinion Addresses An Important Issue Regarding the Statute of Limitations for OPRA Actions

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In Dalnoky v. Pinelands Reg. School Dist., the court dealt with an OPRA issue of first impression: whether a requestor may refile his OPRA request, after the custodian denied the request and the requestor did not file a court complaint challenging this denial within the 45-day statute of limitations. The Appellate Division concluded that a requestor may not avoid the statute of limitations by filing the same OPRA request at a later date.

In this case, the custodian denied the OPRA request on October 23, 2020. The requestor subsequently filed the same OPRA request several other times during 2021 and 2022. He filed a lawsuit against the school district on December 6, 2021, which raised several claims, including a challenge to the denial of his OPRA requests.

The Appellate Division upheld the dismissal of the OPRA claim, for failure to file it with the trial court until well beyond the 45-day statute of limitations applicable to OPRA matters: the custodian denied the request in October 2020, and the complaint was filed in December 2021.

The requestor argued that the complaint was timely because it concerned the OPRA request he had made to the district in November 2021. But the court determined that this request was the same as the one that the district had denied in October 2020, which the requestor had not timely challenged. The court observed that it would “frustrate the purpose” of OPRA’s statute of limitations to “allow plaintiff to start a new forty-five-day period by simply making an identical request….”

I think the court’s determination is inarguably correct; indeed, there would effectively be no statute of limitations for OPRA complaints if appellant’s argument were accepted. However, there’s at least one trial court ruling that reached the opposite conclusion.

It’s unfortunate the Appellate Division’s opinion in Dalnoky is not precedential, to preclude other requestors from refiling their requests in an effort to avoid compliance with the statute of limitations for OPRA complaints.

Reminder: OPRA Does Not Permit Disclosure of Mugshots

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Today’s top news story is Trump’s mugshot, taken upon his booking on Georgia felony charges. Apparently, mugshots are publicly accessible under Georgia law. But in New Jersey, mugshots cannot be accessed under OPRA.

As I discussed in this post, the GRC has consistently ruled that OPRA exempts arrest photos from disclosure to the public. The GRC bases this conclusion on Executive Order 69 (Whitman), which exempts “fingerprint cards, plates and photographs and similar criminal investigation records….”

This executive order is still in force; notably, the Attorney General’s current Law Enforcement Guidelines reference it in the section concerning police department records.

There are no court cases addressing OPRA requests for photos of arrested defendants, but the GRC’s position that Executive Order 69’s exemption applies to mugshots seems reasonable.

A Rare Court Opinion On OPRA’s Security Exemption

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In 2016, the Supreme Court, in Gilleran v. Bloomfield Tp., for the first time addressed OPRA’s exemption for security information which, if disclosed, would jeopardize security of a building or create a risk to a person’s safety. The Court held that the exemption applies to footage from a building’s surveillance camera. Since this Supreme Court opinion, there has been almost no case law dealing with this security exemption, except for a single, unpublished 2018 Appellate Division opinion that determined the exemption covers computer security information.

The Appellate Division recently issued another unpublished opinion concerning the security exemption. Zezza v. Evesham Tp. Bd. of Ed. Although this opinion is not precedential, and breaks no new legal ground, it’s still worth noting, in view of the lack of case law in this area of OPRA.

The court held that the Board incorrectly denied an OPRA request for 35 seconds of footage from surveillance cameras on the grounds of a school, because it had made no showing that release of the video would compromise security. The Board did not submit any certifications describing security concerns, and in addition, the trial judge concluded that disclosing such a small amount of video footage would not expose any “surveillance weaknesses.”

The Appellate Division correctly determined that under these circumstances, there’s no basis to apply the security exemption. It noted that in Gilleran, the Supreme Court expressly said that to rely on this exemption, “the governmental entity must establish that the security tool (here, the camera) produces information that, if disclosed, would create a risk to the security of the building or the persons therein because of the revealing nature of the product of that tool.”

Appellate Division: No OPRA Violation Where Custodian Was Temporarily Unable To Search For Records Due To Covid Shutdown

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In an unpublished opinion, the Appellate Division determined that a public body acted appropriately, and did not violate OPRA’s response deadline, where it told the requestor it would search for the requested records after the end of a Covid shutdown. C.E. v. Elizabeth Public School Dist. This is the first appellate opinion to deal with the effect of pandemic closures on the handling of an OPRA request.

The OPRA request was submitted to the School District in May 2020, when all District schools and offices were closed indefinitely due to Covid. As a result, the District advised the requestor, “we will respond to your request for records when circumstances allowing for the reopening of the District and access to records permit.” It explained that the search of the records sought could only be done on the premises. The District eventually provided the requested records in March 2021, shortly after being able to return to the office.

The appeal concerned the requestor’s claim for attorney fees, based on the catalyst theory–that its litigation, which it had filed in the Law Division in 2020, caused the release of records in 2021. The Appellate Division rejected this argument because the District had not refused to disclose any records; instead, its answer to the OPRA request was that it would produce responsive records when able to do so. The requestor’s litigation, said the court, did not cause the District to release the records.

The requestor attempted to avoid this conclusion by arguing that the District’s initial response should be deemed a denial of the request, because the District did not fulfill the request within OPRA’s 7-business day deadline. The court found this argument to be flawed, because the Legislature suspended this OPRA response deadline during the Covid emergency. Instead of requiring the custodian to respond within a specific time frame, the statute stated that a custodian must make a reasonable effort under the circumstances to respond. The Court concluded here that the District did make a reasonable effort, given the impact of the Covid-related closure on its ability to search for responsive records.

Supreme Court to Review Whether OPRA Requires Disclosure of Residents’ Email Addresses

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The Supreme Court recently granted review of a consequential OPRA issue: the applicability of OPRA’s privacy provision to residents’ personal email addresses. Since OPRA’s enactment, municipalities have been frustrated by the absence of precedential case law governing requests for residents’ email addresses. The Supreme Court will now remedy this situation, in Rise Against Hate v. Cherry Hill.

Specifically, the question in the case, according to the Court’s website, is:

“Are email addresses submitted by members of the public to a public agency to sign up for electronic newsletters and notices subject to disclosure under the Open Public Records Act?”

In this case, the Appellate Division held that OPRA’s privacy section prohibited disclosure of the email addresses. As I explained here, the Appellate Division determined that people have an expectation of privacy in their email addresses, and these privacy interests outweighed the requestor’s interest in disclosure, where residents provided their email information to the municipalities for receipt of “periodic, generic newsletters and notices.”

Although this case only involves email addresses that were submitted for receipt of newsletters and notices from municipalities, presumably the Supreme Court’s analysis will also provide guidance on how to handle an OPRA request for a personal email address that a public body has received, for any other reason.

A Reminder from the GRC: Officials’ Private Calendars are Exempt from Disclosure

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In 2005, the Appellate Division held that an official’s appointment calendar is exempt under OPRA. There’s been no change in the law since this ruling, but requestors still occasionally seek disclosure of this type of calendar.

The GRC recently upheld the denial of such a request, which asked for disclosure of the Outlook calendars of the State Registrar of Vital Statistics. Since is was undisputed that these contained only internal information, rather than public meeting schedules, the GRC held that they were exempt, based on the Appellate Division’s 2005 opinion and the GRC’s 2017 decision in McDonald v. Jersey City (rejecting request for Mayor Fulop’s calendar).

Supreme Court: Custodians Should Be Trained In Handling Common Law Records Requests

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In Gannett v. Neptune Tp., its recent opinion holding that common law record requestors have no right to attorney fees, the Supreme Court took the unusual step of recommending that custodians receive training in how to deal with common law requests. As I’ll explain, public entities that fail to provide this suggested training run the risk of paying requestors’ attorney fees and court costs.

Noting that common law record requests often present complex issues, the Court

recommend[ed] that municipal clerks and other records custodians
for public entities receive comprehensive training with respect to common law
right of access claims, and that they be directed to carefully review each
request and provide a response that comports with the law.

Although the Court’s recommendation is not a binding directive, its opinion suggests a potential adverse consequence if a custodian does not receive appropriate training. The opinion states that attorney fees are not automatically awarded in common law matters, to enable public entities “to formulate a good-faith legal position on the disputed information and to litigate that position, without the risk of an award of attorneys’ fees in the event that a court later rejects it.” But the Court then cautions that the sanctions for frivolous litigation positions–which include awarding attorney fees–still apply to common law record disputes. According to the Court, these sanctions may be imposed where a custodian denies a request for a record that the Court has previously deemed to be subject to disclosure under the common law.

In short, the Court has signaled that if a custodian has not been trained in the common law right of access to records, and incorrectly rejects a request for a record that case law has determined to be disclosable under the common law, the public entity will face the risk of monetary sanctions.

I offer training programs regarding the common law right to records, for both custodians and attorneys. Please contact me at lewscheindlin@gmail.com if you are interested.