Legislature Restores 7-Business Day Deadline for Responding to Most OPRA Requests

In March 2020, due to the Covid-19 pandemic, the Legislature amended OPRA to provide that the 7-business day response deadline did not apply to OPRA requests during this public health emergency. Today, Gov. Murphy signed into law legislation that repeals this provision for most requests.

The legislation in question contains a number of provisions dealing with the Covid crisis. One section restores OPRA’s normal response deadline for requests. The section has one exception: “requests made for records related to the COVID-19 response” continue to be covered by the 2020 statute’s language removing the 7-day deadline requirement.

Supreme Court Grants Review of Case on Access to Police Internal Affairs Records

The Supreme Court recently announced that it will review the Appellate Division’s decision in Rivera v. Union County Prosecutor. According to the Court’s website, the question is, “are the police department internal affairs reports at issue subject to disclosure under the Open Public Records Act and the common law right of access?”

I’m not sure why the Court took this case, as it has already held, in a 2020 opinion concerning the powers of civilian review boards, that police internal affairs records are strictly confidential. FOP v. City of Newark. Based on this ruling, as well as many Appellate Division opinions, it’s settled that these records are not accessible under OPRA.

It’s possible that the key reason for the grant of certification in Rivera is for the Court to examine the issue of common law requests for internal affairs records. As I noted with regard to the Appellate Division’s opinion in Rivera, I was somewhat surprised the court denied the common law claim, because there did seem to be an extremely strong public interest in disclosure: the case involved a high profile matter concerning alleged misconduct by a former city police director. Perhaps the Supreme Court wants to give guidance on the proper weighing of interests in common law requests for sensitive internal affairs records.

The Problem of Attorney Fees Awards in Common Law Public Records Cases

The Appellate Division recently held, in a published opinion, that attorney fees may be awarded, at a judge’s discretion, to a plaintiff who loses its OPRA case, but obtains the requested records under the common law. Gannett Sat. Info Syst. v. Tp. of Neptune. The court based this ruling on a single sentence in a Supreme Court opinion that suggests this is permissible. Although the appellate court of course had to comply with a statement by the Supreme Court, I believe the Supreme Court never intended to rule that common law records cases are an exception to the long-settled requirement that each litigant must bear its own attorney fees.

The Supreme Court opinion in question is the 2008 case of Mason v. City of Hoboken. This case involved two issues: what is the statute of limitations applicable to OPRA lawsuits, and does the “catalyst theory” of attorney fee awards apply under OPRA. In the course of discussing the latter question, the Court said:

“The parties have not addressed at length whether the question of attorney’s fees merits  different treatment in an action brought under the common law. Absent an apparent, theoretical basis for such a distinction, we conclude that the catalyst theory applies to common law suits as well.”

I briefed and orally argued the State’s position in Mason, so I’m able to say that the parties did not address the question of common law attorney fees for a simple reason: it was not presented by the case. The case exclusively involved plaintiff’s claim that she was entitled to fees under OPRA’s attorney fee provision.

And I do not understand the Court’s next sentence above to be a determination that plaintiffs who obtain records through a common law request may be entitled to attorney fees, as they are under OPRA, because such a conclusion would be completely contrary to New Jersey law. As the Mason Court itself recognized, New Jersey follows the “American Rule,” under which the prevailing litigant cannot recover attorney fees from the losing party, unless such shifting of fees is specifically permitted by statute, court rule or contract. OPRA has this fee-shifting requirement; the common law right to public records does not.

I think that if this issue were to be presented to the Supreme Court, fully briefed, the Court would conclude that the American Rule applies and prohibits common law fee awards. Perhaps the Gannett case will give the Court the opportunity to do so.

An Important New Appellate Division Opinion on OPRA and Common Law Access to Internal Affairs Records

The Appellate Division last week issued a published opinion that deals with several issues concerning public access to the internal affairs records of police officers. Gannett Sat. Info. Network v. Township of Neptune.

The court held, consistent with recent decisions of the Supreme Court and Appellate Division, that a police officer’s internal affairs (IA) file is exempt from disclosure under OPRA. However, the court determined that this particular IA file should be disclosed under the common law. The Appellate Division agreed with the trial court that the confidentiality of such records was outweighed by the “unique” facts here; the records related to a “horrific crime” committed by the officer, and much of the information in the records had already been made public.

This is a useful reminder of a basic public records law principle: even a record that’s exempt under OPRA may nevertheless be obtained under the common law.

In its most significant ruling, the Appellate Division stated that a litigant who obtains records under the common law, rather than OPRA, may be entitled to an award of attorney fees. As discussed here, I don’t think there’s any legal basis for awarding attorney fees in common law records cases, but that’s for the Supreme Court to say.

However, in this case, the court held that plaintiff should not receive an attorney fees award. The court said such an award (unlike under OPRA) is not automatic, but rather is within the judge’s discretion. In this case, where the IA records were actually independently released by the Attorney General, the Appellate Division saw no basis to grant attorney fees to the plaintiff newspaper.

Supreme Court To Decide Another OPRA Case

The Supreme Court recently granted review of a case to determine 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. Libertarians for Transparent Govt v. Cumberland County.

For many decades, it has been settled law in New Jersey that an internal disciplinary action taken by a public employer against its employee is a personnel record of that employee, and therefore cannot be disclosed. The Supreme Court would effectively abolish this rule if it were to determine that the internal resolution of such a disciplinary matter, through a settlement between the employer and employee, is not covered by OPRA’s personnel exemption.

Libertarians is the fourth OPRA matter currently pending before the Supreme Court.

Appellate Division Issues Precedential Opinion on Access to Higher Education Student Records

The Appellate Division recently issued a published opinion concerning an area of OPRA that’s rarely been addressed by the courts–access to student records held by higher education institutions. Doe v. Rutgers.

Doe, a Rutgers student, requested many different records, including some that contained student information. Rutgers argued that it could not release any records that have such information–including even Doe’s own records. The court rejected this position, and held that Rutgers must disclose “records that do not reveal the identity of other students. This includes plaintiff’s access to his own academic, discipline, and financial records as long as identifiable references to other students are removed.”

This is the first time I’ve seen the Appellate Division address this issue. Perhaps this is because OPRA is clear with regard to access to higher education student records: the statute says such records are exempt, but only “to the extent disclosure would reveal the identity of the student.” And there’s little doubt that a student should be entitled to obtain his own records.

The opinion also dealt with an issue that was settled many years ago, yet keeps coming up: the invalidity of overbroad OPRA requests that require research by the custodian. The court determined that much of Doe’s multi-part OPRA request was deficient on this basis.

The opinion contains an additional ruling that applies beyond the higher education context. Doe’s OPRA request included a demand for all records related to Rutgers’ response to the other parts of his 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 the court further indicated that these records would not be disclosable, because they would fall within the deliberative process exemption.

Major Supreme Court OPRA Opinions Coming in 2021

There are going to be some important developments in OPRA law in 2021, as the Supreme Court is currently considering three cases involving OPRA issues.

-Bozzi v. Jersey City

The specific question in this case–whether OPRA requires disclosure of the home addresses of individuals who applied for a pet license–is significant because it’s one that frequently confronts municipalities. But the case also presents broader issues of far-reaching impact: do people have a reasonable expectation of privacy in their home address information that’s in the possession of the government? If so, does OPRA’s privacy exemption protect home addresses and similar information?

Simmons v. Mercado

This case involves an issue that has never been dealt with by the courts, but is of critical importance to many OPRA custodians: when an agency has the ability to access another agency’s database, is it required to answer OPRA requests for information contained in the database?

In re AG Law Enforcement Directive

This appeal concerns the validity of the Attorney General’s July 2020 Law Enforcement Directive that requires, for the first time, the public disclosure of the names of police officers who have committed serious disciplinary violations. The Court will need to consider the tension between this requirement and OPRA’s personnel exemption, which has always been held to preclude the release of the names of disciplined public employees.

2020 Case Law Review–A Year of Major OPRA Court Cases

Despite the pandemic, the courts issued a surprisingly large number of significant OPRA opinions during 2020. Here is a quick review of these rulings.

There were two cases involving the critical question of public access to police internal affairs records. The Supreme Court ruled that these records are not accessible under OPRA. FOP v. City of Newark. However, in the summer of 2020 the Attorney General created an exception to this rule, adopting a policy that requires law enforcement agencies to disclose the identities of disciplined officers. See this post for a summary of the precedential Appellate Division opinion (now under review by the Supreme Court) upholding the policy’s validity.

The Supreme Court also granted review of two other 2020 Appellate Division that dealt with important OPRA issues: Bozzi v. Roselle Park and Simmons v. Mercado. In Bozzi, the court determined that OPRA’s privacy provision does not protect against the disclosure of home addresses that people have provided to the government. In Simmons, the court said, in a matter of first impression, that when an agency has access to another agency’s database, it is not the custodian of that system, and therefore cannot be required to answer OPRA requests for information contained in the database.

And there were three more precedential Appellate Division OPRA opinions:

IMO Application for Med. Marijuana ATC for Pangaea, etc. –a public body may withhold disclosure of the names of the individuals who reviewed applications that were submitted to the public body in a competitive process.

Libertarians for Transparent Govt. v. Cumberland County–a settlement agreement between a public body and its employee, which resolves an internal disciplinary action against that employee, is exempt from disclosure as a personnel record.

Digital First Media v. Ewing Tp.–a Use of Force Report involving a juvenile must be disclosed under OPRA, with redactions to protect the juvenile’s identity.

Appellate Division: OPRA Does Not Require Disclosure of Identities of Members of a Review Committee

Just before Thanksgiving, the Appellate Division issued a precedential opinion on a major OPRA issue of first impression. The court held that a public body may withhold disclosure of the names of those who reviewed applications that were submitted to the public body in a competitive process. IMO Application for Medicinal Marijuana ATC for Pangaea, etc.

When agencies render a decision choosing among applicants, whether in a formal bidding process or other type of competitive matter, OPRA requestors commonly ask for all information concerning the agency’s selection of the winning applicant. This includes the review and scoring of the applications by the agency’s review committee, as well as the identities of the members of the committee. Of course, the records showing the committee members’ evaluations of each application are public under OPRA, but it’s never been clear whether the names of those who made these evaluations must be disclosed.

In Pangaea, the court dealt with a challenge to the Department of Health’s selection of entities to grow, process and dispense marijuana under the State’s medicinal marijuana program. The opinion primarily focused on challenges to the scoring of the applications and the Department’s explanation for its decisions, but the court also firmly rejected the argument, made by some of the disappointed applicants, that OPRA requires disclosure of the identities of the review committee members. This information, the court said, is covered by the deliberative process privilege: revealing the identities would harm the agency’s decisionmaking process.

Supreme Court Grants Review of Attorney General’s Directive on Disclosure of Names of Disciplined Officers

As anticipated, the Supreme Court today granted review of the challenge to the Attorney General Directive that requires disclosure of the names of law enforcement officers who have been disciplined. The Court ordered acceleration of the case, with all amicus briefs to be filed no later than December 15th.

See this post for a summary of the Appellate Division opinion in the case, in which the court upheld the validity of the directive.