Tag Archives: Court opinions

New Precedential Appellate Division Opinion: Settlements of IDEA Cases in the OAL Are Accessible under OPRA

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The Supreme Court ruled in 2019 that student records may not be accessed under OPRA (although they may be disclosable as permitted by certain Department of Education regulations). L.R. v. Camden School Dist. In a published opinion issued on May 18, 2022, the Appellate Division held that L.R. does not apply to settlements of OAL cases involving IDEA special education challenges. As a result, these settlements must be disclosed under OPRA. C.E. v. Elizabeth Public School Dist.

The court noted that L.R. did not apply because the IDEA was not at issue in that case. The court therefore determined that the applicable IDEA regulations governed the request in C.E. These regulations designate the OAL to hear special education complaints under the IDEA, and say that settlements of these cases are incorporated into an ALJ’s initial decision approving the settlement. Federal law requires making these decisions public, after removal of any student-identifying information.

In accordance with these requirements, the Appellate Division upheld the release under OPRA of the requested settlements, with identifying information redacted.

A Reminder from the Appellate Division: Custodians May be Fined Only if They Knowingly and Willfully Violate OPRA

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As I noted in 2019, there are few court opinions addressing what type of conduct will warrant fining a records custodian under OPRA’s penalty provision, N.J.S.A. 47:1A-11. In a recent unpublished opinion, McMorrow v. Boro of Englewood Cliffs, the Appellate Division emphasized that a penalty may not be imposed simply because the custodian erred in responding to the OPRA request. The statute requires more–a penalty is permissible only where the custodian knowingly and willfully violated OPRA, meaning that she had actual knowledge that her actions were wrongful, and these actions exhibited “conscious wrongdoing.”

In McMorrow, the trial judge ruled that the custodian violated OPRA in several respects in responding to a request. The trial judge also imposed a $2500 personal fine upon the custodian for unreasonably denying access to the requested records in a knowing and willful manner.

The custodian appealed, and argued only that the trial judge erred in penalizing her. She did not challenge the ruling that there were OPRA violations in responding to the request. As a result, the validity of the OPRA response was not at issue; the Appellate Division focused exclusively on the trial judge’s determination that the custodian should pay a fine.

The court reversed this ruling. It concluded that the trial judge erred by basing the decision on her view that the custodian should have handled the OPRA request in a better way, rather than on whether there was any conscious wrongdoing by the custodian. For example, the trial judge imposed the penalty partly because the custodian, citing her limited knowledge of the Boro’s computer system, needed an IT consultant to search for requested emails, and charged a special service fee for this person’s time and effort. The trial judge felt that the custodian should have been able to conduct the email search without the consultant’s involvement.

The Appellate Division concluded that the custodian’s limited knowledge of the computer system did not support a finding that she knowingly and willfully violated OPRA. The record simply did not show any conscious wrongdoing by the custodian, and therefore she could not be fined.

Appellate Division Issues Useful Opinion on Dealing with Requests for Attorney Invoices

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OPRA states that attorney bills must be disclosed, but they may be redacted to remove any attorney-client privileged information on them. I’ve always understood this provision to mean that it’s permissible to redact anything on the bill that would reveal something about legal advice or litigation strategy. For the first time, the Appellate Division (in an unpublished opinion) has addressed this aspect of OPRA, and confirmed that this interpretation of the attorney invoice language is correct.

In Mears v. Boro of Lawnside, the custodian redacted “every word of every line item” description of the attorney’s services on the invoices, as falling within the attorney-client privilege. The Appellate Division reviewed the invoices and concluded that none of the entries were covered by the privilege. The redactions here all shielded the type of descriptions that are typically put on an attorney’s bill, such as, for example, review correspondence; participate in phone conference with court, or with identified individuals; and draft letter brief in advance of oral argument. The court stated that these redactions violated OPRA, because the descriptions did not reveal “confidential information, trial strategy, or work
product.”

The Boro had also redacted certain expenses shown on the bills, for filing fees, mailing fees, and a monthly retainer. The court invalidated these redactions as well, again because these expenses did not disclose any privileged information.

Appellate Division Issues Significant Published Opinion on OPRA Litigation and Attorney Fee Awards

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The Appellate Division’s January 24th opinion in Underwood Properties v. Hackensack is the first precedential court opinion on a problematic OPRA practice that often occurs: an attorney submits an OPRA request under his own name, and then the attorney’s client files a complaint over the denial of the request. The court held that the client has standing to file the OPRA litigation, despite not being identified as the requestor in the OPRA request.

Underwood is involved in lawsuits against Hackensack concerning its redevelopment plan. Separately, Underwood’s counsel submitted, under his own name, OPRA requests to the City for correspondence of various City officials. After the City denied the requests on various bases, Underwood filed a lawsuit, which resulted in some documents being released.

In the trial and appellate courts, Hackensack argued that Underwood lacked standing to file a complaint, because it was not the requestor. The trial judge rejected this argument, on the ground that counsel filed the OPRA requests on behalf of his client and within the scope of his representation. The Appellate Division agreed with this reasoning. It added that OPRA’s goal of access to public records, and the courts’ liberal standing rules, supported allowing the client to pursue the litigation.

I don’t think the general purpose of OPRA and standing policies are relevant here. As I’ve noted previously, OPRA only permits the “requestor” to file a court action challenging a denial of a request, so there’s simply no basis to permit someone who did not make the request to litigate over its denial. This problem doesn’t exist where it’s clear that the client is the requestor, and the attorney simply submitted the OPRA request on behalf of that client. But if that’s the case, the OPRA request should identify the client as the requestor.

In addition to setting the above precedent, Underwood is a useful opinion because it’s one of the few cases in recent years to deal with calculating an appropriate attorney fee award where the requestor achieves only partial success in its OPRA litigation. In 2005, the Supreme Court held that the amount of the award must be based on a “qualitative analysis” of the amount of litigation success achieved by the requestor, but there is little case law applying this analysis. In Underwood, the court upheld the trial judge’s fee award as complying with the required qualitative analysis. The trial judge reduced the amount of fees requested, from about $14,500 to $3750, due to the requestor’s limited suceess in obtaining documents and its failure to vindicate OPRA’s purpose.

Trial Judge Limits Requestor’s Ability To Continue To File OPRA Requests And Litigation

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I’ve previously noted that public bodies often have to deal with OPRA requestors who file an excessive number of requests or pursue frivolous OPRA litigation. A recent Appellate Division opinion shows that trial judges have the authority to stop this kind of conduct.

Garcia v. Bergen Prosecutor and NJ OAG involved a requestor who had made a number of invalid OPRA requests, and then litigated the ensuing denials, in connection with his fruitless efforts to overturn his murder conviction. The Appellate Division affirmed the trial court’s denial of his latest OPRA (and common law) requests, which were invalid for a number of reasons.

Of particular interest here, the court also noted that the trial judge had granted the motion of the Bergen Prosecutor’s Office to preclude plaintiff from making future OPRA requests concerning his conviction, without getting court approval. The trial judge determined that, pursuant to a judge’s “inherent authority to prevent the filing of frivolous litigation,” prior court approval of the future filing of complaints was necessary.

The Supreme Court said years ago that the courts have the power to grant applications by public bodies to restrain requestors who file excessive, unreasonable public records requests. The Garcia case and a 2018 case show that some trial courts recognize the need to exercise this power to protect the public against burdensome and frivolous OPRA requests and litigation.