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.

A Pending Appellate Division Case Presents Two Important OPRA Issues

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Several municipalities are in litigation with the organization Rise Against Hate over requests for residents’ email addresses. One of these cases, involving Cherry Hill, is pending in the Appellate Division. Cherry Hill appealed the trial court’s ruling that OPRA’s privacy section does not protect email addresses from disclosure.

There is no precedential case law on whether email addresses must be disclosed under OPRA. I think there’s a strong argument that people have a reasonable expectation of privacy in their email addresses, and therefore this information should typically not be obtainable through an OPRA request. However, I’m not confident the court will agree with this position, in view of the extremely limited effect the Supreme Court and the Appellate Division have given to OPRA’s privacy provision in recent cases.

The Cherry Hill appeal presents another important issue, which I’ve never seen raised before: whether a requestor is permitted to refile its OPRA request, after the custodian denied the request and the requestor did not file a court challenge to the denial within the 45-day statute of limitations. The trial judge concluded that a requestor may submit the same request again, despite the failure to meet the statute of limitations, on the ground that OPRA does not prohibit requestors from refiling their requests.

This determination is plainly incorrect. It misses the point that the Supreme Court expressly held that OPRA has a 45-day statute of limitations for requestors who want to challenge a denial in the Law Division. Mason v. City of Hoboken. The trial court’s decision makes the Supreme Court’s decision meaningless, by allowing requestors who fail to meet the complaint filing deadline to simply file the same request again. The result is that there is no statute of limitations–precisely the opposite of what the Supreme Court mandated.

Major OPRA Case Law Expected in 2022

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This year will see at least two Supreme Court opinions on crucial public records issues.

Libertarians for Transparent Govt v. Cumberland County involves the question of whether a settlement agreement between a public body and its employee, which resolves an internal disciplinary action against that employee, is an exempt personnel record. As I’ve previously discussed, this has always been considered to be a confidential personnel record. Will the Supreme Court depart from this longstanding rule?

In the other pending Supreme Court case, Rivera v. Union County Prosecutor, the Court will determine whether police department internal affairs reports at issue, concerning alleged misconduct by a city’s police director, must be disclosed under OPRA and the common law. Since the Supreme Court held in 2020 that police internal affairs records are confidential under OPRA, it seems unlikely it will reverse that position here. I think it’s more likely that this case will focus on whether the records in question should be made public under the common law.

In addition to these Supreme Court opinions, public bodies should expect disputes and litigation related to interpreting some of the cases decided in 2021. I anticipate more claims seeking attorney fee awards for litigating common law record requests, in view of last year’s precedential opinion of the Appellate Division permitting such awards in common law cases. And the extent of OPRA’s privacy protection will continue to be a hot issue; this is currently the subject of a number of pending cases, specifically involving requests for individuals’ email addresses.

2021 OPRA Case Law Review: A Year of Landmark Opinions

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In every year since OPRA’s enactment in 2002, the Supreme Court and Appellate Division have issued opinions with far-reaching impact on OPRA law and procedure. 2021 was no different. Some of the cases decided this year constituted landmark developments in New Jersey public records law.

In Bozzi v. Jersey City, the Supreme Court resolved an issue that municipal custodians have struggled with since OPRA’s enactment, in holding that the names and addresses of those who have obtained dog licenses must be disclosed. The Court’s opinion also addressed, for the first time, the larger question of whether a person’s home address is protected by OPRA’s privacy requirement. The Court effectively concluded that OPRA does not shield home addresses from public disclosure.

In another landmark case, the Supreme Court upheld the Attorney General’s requirement that the names of police officers who have committed serious disciplinary violations must be made public.

The third Supreme Court OPRA opinion, issued in 2021, Banfi v. Mercado, said a police department is required to respond to an OPRA request for electronic information concerning complaints and summonses, where police officers entered such arrest-related information into the Judiciary’s Electronic Complaint Disposition Record (eCDR) system.

The Appellate Division issued a significant opinion in Gannett v. Neptune Twp. The court held that a police officer’s internal affairs file, although exempt from disclosure under OPRA, is subject to disclosure under the common law. This opinion also contained an even more important ruling concerning common law record requests: the court held, for the first time in a published Appellate Division opinion, that successful common law requestors are eligible to be awarded attorney fees.

The other major Appellate Division case was Doe v. Rutgers. In addition to being one of the few cases to discuss OPRA’s provisions relating to higher education student records, the opinion also discusses a situation that many custodians often have confronted–an OPRA request asking for all records related to the agency’s response to that request. The court stated that this was an invalid request, because the records sought did not exist at the time the request was made. And more crucially, the court further indicated that these records would not be disclosable, because they fall within the deliberative process exemption.

Wag the Dog: Supreme Court’s Bozzi Opinion Makes Most Home Addresses Public Under OPRA

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In Bozzi v. Jersey City, the Supreme Court recently resolved a longstanding issue in holding that OPRA requires disclosure of the names and home addresses of individuals from their dog license records. But the impact of the Court’s opinion is not limited to dog owners; the Court effectively ruled that home addresses are not protected from disclosure by OPRA’s privacy requirement.

The majority opinion in Bozzi held that those who obtain dog licenses don’t have even a “colorable claim” to a reasonable expectation of privacy in their names and addresses. This conclusion rests entirely on the dubious assertion that “owning a dog is, inherently, a public endeavor” (emphasis mine). Even assuming this proposition is correct, the flaw with this analysis of the privacy interest, as identified by Justice Pierre-Louis’ dissent, is that “dog owners appearing in public with their dogs do not do so while simultaneously advertising their full names and addresses.” For this reason, as the dissent pointed out, dog owners likely do not envision that the government will turn over this personal information to the public pursuant to OPRA requests.

Unfortunately, the majority opinion did not follow this sensible approach, and instead adopted an analysis that provides virtually no privacy protection for a person’s home address under OPRA. After Bozzi, where there’s no specific statute providing confidentiality to an address in a particular record, OPRA requires disclosure of the person’s address. The only circumstance where a home address would possibly be confidential under OPRA’s privacy section is when the OPRA request for a home address is linked with disclosure of other clearly private information–such as receipt of financial assistance benefits (Matter of Firemen’s etc) or a person’s social security number (Burnett v. County of Bergen).

Apart from such exceptional situations, there appears to be no basis for withholding a home address under OPRA’s privacy provision.

Supreme Court: OPRA Requires Disclosure of Names and Addresses from Dog License Records

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The Supreme Court today issued an opinion settling a problematic question that has come up countless times since the enactment of OPRA: whether OPRA requires disclosure of the names and home addresses of individuals who provide this information to the government when applying for a dog license. In Bozzi v. Jersey City, the Court held that this personal information must be disclosed to an OPRA requestor.

The legal issue before the Court was whether OPRA’s privacy provision protects dog owners from having their names and addresses made available to the public. The Court said the privacy section does not apply, because there is no “colorable claim that the disclosure of the requested dog license records would invade a dog owner’s reasonable expectation of privacy.” According to the Court, “owning a dog is, inherently, a public endeavor,” and therefore an owner cannot expect privacy with regard to the name and address information submitted for purposes of obtaining a dog license.

The Court did say that other information contained in dog license records should be withheld, based on security concerns: breed information, the purpose of the dog (companion, service dog, or law enforcement), and the name of the dog. The last exclusion is based on the Court’s recognition that many people use the names of their pets as passwords or answers to security questions.

In a separate post, I’ll discuss my view of the Court’s reasoning, as well as the implications of the Bozzi opinion for future OPRA matters.

Does OPRA Require An Attorney Fee Award Where The Requestor is An Attorney?

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Since OPRA’s enactment, I’ve seen a number of cases where an attorney files an OPRA request under his own name, without mentioning a client. When the attorney subsequently challenges the denial of the request, before a court or the GRC, it comes to light that the attorney submitted the request in connection with his representation of a client. If the challenge to the public agency’s OPRA request response is successful, does OPRA require that attorney fees be awarded to the client?

There’s no case law addressing this question. In my view, attorney fees cannot be awarded in this situation because the attorney, not the client, is the requestor. OPRA expressly permits attorney fees to be awarded only to the “requestor;” if an attorney is the requestor, he can’t receive attorney fees for litigating over his own request, because he is acting pro se in that case.

This issue was raised in the recent Appellate Division case Rosario v. Port Authority, but the court did not analyze it. The Appellate Division simply affirmed the trial judge, who determined that a fee award was proper because Rosario’s counsel submitted the OPRA request to the Port Authority in his capacity as the authorized agent for Rosario, who was physically unable to make the request. In addition, the Port Authority was aware of counsel’s representation of Rosario.

Where it’s clear that the OPRA request is being submitted on behalf of a specific client, as in Rosario, there’s no issue. But the availability of a fee award is questionable where a request is made by an attorney, who simply identifies himself as the requestor, and does not indicate that it is actually his client who is seeking the records requested.

The Limited Scope of OPRA’s Exemption for Non-Criminal Investigations

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A recent unpublished Appellate Division opinion, Rosario v. NYNJ Port Authority, provides a reminder of the limited nature of OPRA’s exemption for records related to an investigation that does not involve a criminal matter.

Rosario involved the Port Authority’s denial of a request by the victim of a traffic accident for records related to the incident. The basis for denial was that there was an investigation in progress regarding the accident. But the applicable section of OPRA, N.J.S.A. 47:1A-3, allows withholding of such records only if disclosure would be “inimical to the public interest.” See this post for a discussion of the Supreme Court’s interpretation of this statutory section.

The court upheld the trial court’s order requiring disclosure of the requested records. It concluded that the requestor had a strong interest in obtaining the records for the purpose of filing tort litigation concerning the accident, and the Port Authority had failed to provide any support for the claim that there would be harm from disclosure under the facts here.

Another Supreme Court Opinion on OPRA and Law Enforcement Records: Police Departments Must Respond to Requests for Complaint-Summonses Information

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Only 10 days after issuing an opinion on OPRA and police disciplinary information, on June 17 the Supreme Court issued another ruling on law enforcement records and OPRA. The Court held that a police department is required to respond to an OPRA request for electronic information concerning complaints and summonses. Simmons v. Mercado.

The case involved an OPRA request to the Millville Police Department for DWI, drug possession, and drug paraphernalia complaints and summonses. Police departments do not maintain these records; instead, police officers enter arrest-related information into the Judiciary’s Electronic Complaint Disposition Record (eCDR) system, which generates complaints and summonses and is the repository of these records. The Supreme Court opinion notes that police departments have access to the Judiciary’s eCDR system.

The Supreme Court rejected the argument that requests for these records may only be made to the Judiciary, as the custodian of the eCDR system. The Court said that the records were “made” by the department’s police officers when they inputted arrest information, and therefore they are “government records” of the department under OPRA that must be disclosed by the department.

Of course, the police department (or any other agency) cannot disclose a record without having the ability to retrieve that record from somewhere. In this case, the police department has the ability to retrieve the information through its access to the Judiciary’s eCDR system; presumably for this reason, the Court considered both the police department and the Judiciary to be “concurrent” custodians of the electronic information in question.

Supreme Court Upholds Validity of Attorney General’s Directive Mandating Disclosure of Names of Disciplined Officers

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Today the Supreme Court issued its opinion upholding the Attorney General’s June 2020 Law Enforcement Directive that requires the public disclosure of the names of police officers who have committed serious disciplinary violations. The court determined that the Attorney General reasonably exercised his power to enact this new requirement under his statutory law enforcement authority. In re AG Law Enforcement Directives 2020-5 and 2020-6.

The Court dealt with the threshold issue–the apparent conflict between the Directive and OPRA’s personnel records exemption–in an elegant and straightforward fashion. Chief Justice Rabner, writing for the unanimous Court, found that there is no conflict: OPRA expressly states that the personnel exemption does not apply to personnel records “required to be disclosed by another law,” and, the Court said, the Attorney General’s Directive is such a law.

The name of any law enforcement officer subjected to serious discipline after the date of promulgation of the Directive now must be publicly disclosed.

However, the Attorney General had also ordered the release of the identities of State troopers and other State law enforcement officers who settled serious disciplinary matters in the 20 years before the Directive was enacted. The Court held that these names cannot currently be released. It ordered that there first must be additional litigation, to be held before a judge to be designated, concerning whether officers who settled their disciplinary cases prior to the Directive have valid promissory estoppel claims precluding the public release of their identities.

Police department custodians should note that the Court said similar court proceedings will likely be needed if their departments, which are not covered by the Attorney General’s requirement to disclose the names of officers who were disciplined in the past, also decide to release the names of officers who fall within this category.