Appellate Division Addresses Novel Issue on OPRA’s Deadline for Responding to Requests

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Last week, in addition to releasing a major, precedential OPRA opinion, the Appellate Division issued an interesting unpublished opinion that also may have a significant impact on OPRA matters. In Smith v. Moorestown Twp., the Appellate Division addressed a novel issue under OPRA–when a requestor receives the requested record within 7 business days, may he appeal to the GRC on the basis that the custodian did not respond to the request “as soon as possible?”

In this case, Smith filed a GRC complaint 5 business days after submitting his request, and the custodian granted his request on the 6th business day. The GRC dismissed his complaint as “unripe,” because it was filed during the statutory 7-business-day period. But Smith pointed out that OPRA requires custodians to grant or deny access to a government record “as soon as possible, but not later than seven business days after receiving the request.” (Italics added). He argued that this language gave him the right to challenge whether the custodian here failed to respond as soon as possible to his request.

The Appellate Division rejected this argument because OPRA only permits appeals to the GRC by a person who is “denied access” to a record. Smith was not denied access to the record he requested. And, the court said, the statute does not define the custodian’s failure to respond “as soon as possible” as a denial of access; instead, only the failure to respond within 7 business days is deemed a denial under the statute.

The Smith case is the first time I’ve seen the statute’s “as soon as possible” language directly addressed by a court. The court’s conclusion that this phrase does not override the statute’s language concerning the right to challenge the custodian’s denial of access is important. Requestors often complain that their requests were not answered quickly enough. The Appellate Division’s opinion makes clear that this type of claim cannot be the basis of an appeal to the GRC, or a court complaint, if the custodian grants the request by the specific deadline set by the statute.

It’s worth noting that the argument raised in Smith is likely to come up more often in the near future, due to the recent amendment to OPRA suspending the 7-business day response deadline during public health emergencies. The amendment says that although this deadline does not apply, custodians must make an effort to answer requests “as soon as possible.”

An Important Appellate Division Opinion: OPRA Requests For Information From A Database May Only Be Made To The Agency That Maintains The Database

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Today the Appellate Division issued a published opinion that resolves a longstanding question: is an agency that has access to another agency’s database, but is not the custodian of that system, required to answer OPRA requests for information in the database? In this case of first impression, the court held that the answer is no.

In Simmons v. Mercado, the requestors sought from the Millville Police Department DWI, drug possession, and drug paraphernalia complaints and summonses. The request was denied on the basis that the police do not maintain these records; instead, they enter information into the Judiciary’s Electronic Complaint Disposition Record (eCDR) system, which generates complaints and summonses and is the repository of these records.

The trial judge ruled against the department, reasoning that it has access to the eCDR system and so must fulfill the OPRA request.

The Appellate Division firmly rejected this view. It held that the records in the CDR system are the records of the Judiciary, not the police department, and therefore the department is not the custodian of these records under OPRA. The fact that the police are required to input some information into this system does not make it a record of the police department for purposes of OPRA. Moreover, said the court, that the police have access to this system does not change the fact that the Judiciary maintains it. The court concluded that the request here should have been directed to the Judiciary, not the police department.

The Appellate Division’s ruling is highly significant. It affects many agencies, not just police departments. There are many situations where State and local agencies must submit information into electronic databases maintained by other agencies, and they often have access to these other agencies’ systems. As in Simmons, OPRA requests are often directed to the agency that is not the custodian of the database, but has access to it, raising the question of whether the agency must satisfy the request. The court has now issued a clear standard that resolves this problematic situation.

GRC Issues Guidance On Responding to OPRA Requests During COVID-19 Emergency

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The GRC has issued a “special statement” (under “OPRA Alerts” on its website) on how to apply the recent amendment to OPRA’, which abolishes the 7-business day response deadline during a period that has been declared a state of emergency, public health emergency, or state or local disaster emergency.

This guidance focuses on the amendment’s statement that although there is no deadline during such a period, the custodian has to “make a reasonable effort, as the circumstances permit, to respond …within seven business days or as soon as possible thereafter.” The GRC construes this requirement as equivalent to the longstanding ability of a custodian to extend the time to respond to an OPRA request where reasonably necessary.

While the GRC’s guidance makes sense, ideally, custodians will not need to litigate over whether they made a reasonable effort to respond to an OPRA request submitted during the current health crisis. Requestors presumably appreciate that due to the extraordinary emergency faced by New Jersey, agencies cannot necessarily answer OPRA requests quickly.

OPRA Amended Due To Coronavirus Crisis

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The Covid-19 crisis has prompted the Legislature to enact a change to OPRA’s section on the deadline for responding to OPRA requests.

The statute now provides that the 7-business day response deadline does not apply during a period that has been declared a state of emergency, public health emergency, or state or local disaster emergency. However, the statute further states that the custodian must “make a reasonable effort, as the circumstances permit, to respond …within seven business days or as soon as possible thereafter.”

I’m concerned that this well-intentioned law will have negative consequences in the future for public bodies, by casting doubt on what has been the settled rule that custodians may extend the 7-day period where reasonably necessary under the circumstances. The courts and the GRC have consistently upheld this principle, permitting extensions well beyond 7 days, as long as the custodian could show good cause for the delay.

However, the amended version of OPRA gives requestors an argument that now extensions are permissible only during an emergency period, and not for any other reason. I doubt the Legislature intended this result, but the legislative intent is not clear in this regard. Public bodies should expect to see requestors raise this argument in future OPRA matters, once we finally get past our current public health crisis period.

A Major OPRA Ruling: Home Addresses Must Be Disclosed

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Since OPRA’s enactment, custodians have struggled with the unsettled question of whether a person’s home address is confidential, under the exemption for the reasonable expectation of privacy. This issue comes up in many OPRA requests; one that frequently recurs is a request for the names and addresses of people who submitted pet license applications to municipalities. The Appellate Division has now issued a definitive, precedential opinion on this issue, holding that the home addresses on these licensing records must be disclosed. Bozzi v. Roselle Park.

The requestor in this case, an installer of invisible dog fences, requested the names and home addresses of municipal residents from their dog licenses. Previous cases addressing this type of OPRA request have differed on whether the individual’s privacy interest in this information outweighed the need for its disclosure. However, in Bozzi the Appellate Division held that OPRA’s privacy exemption does not ever apply in this situation, because people have no reasonable expectation of privacy in their name and address information when they apply for a dog license.

The court’s holding is significant, in that it resolves the longstanding question of whether municipalities must grant access to addresses found in pet license records. But the opinion is of even greater importance because it affects all OPRA requests pertaining to home addresses. The court went beyond the specific issue of addresses in dog license records, and stated, for the first time in a precedential opinion, that the Legislature, in OPRA, did not intend to block disclosure of names and home addresses in any government record.

Although this portion of the opinion may be dicta, the Appellate Division’s direction is unambiguous: OPRA requests for records that disclose a person’s name and address should be granted.

New Precedential Appellate Division Opinion: Use of Force Reports Involving Juveniles Are Not Exempt Under OPRA

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The Appellate Division recently held, in a case of first impression, that Use of Force Reports (UFRs) involving juveniles must be disclosed under OPRA, with redaction of the name of the juvenile. Digital First Media v. Ewing Tp.

The OPRA request sought UFRs from Ewing Township in connection with the arrest of a minor. Ewing denied the request, taking the position that the UFR was a juvenile record and therefore was completely confidential. The court rejected this argument. It determined, consistent with the position of the Attorney General, that disclosure of the UFR, with redaction of the juvenile’s identity, satisfies the laws mandating preservation of a juvenile’s confidentiality.

This is clearly the correct result. UFRs are public records under OPRA. If a portion of a UFR contains confidential information, that does not make the entire record exempt; instead, that part of the record should be redacted, as OPRA requires with regard to all other publicly-accessible records.

Appellate Division Rejects OPRA Privacy Exemption Claim

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A recent Appellate Division opinion in an OPRA case surprisingly rejected an appropriate effort by a public body to protect individuals’ privacy interests. Frega v. Boro of Saddle River.

The Borough of Saddle River approved a “deer cull” for the 2018-19 hunting season. The requestor, who was opposed to the deer cull, submitted an OPRA request for the names of the hunters who would be participating, as well as the addresses of properties on which the hunting was authorized.

The Boro denied the request under OPRA’s privacy exemption, due to threats that had been made against supporters of the deer cull. The record showed that people opposed to the cull had made various threatening statements toward Boro officials for their decision to allow it; for example, one Facebook post said, “They are sick and disgusting people . . . Now is the time to stop . . . . Everyone would like to beat the hell out of the entire bunch of them . . . they will get it back in spades. . . . Watch . . . . people are very upset.”

The Appellate Division upheld the trial judge’s decision rejecting the privacy argument. The court determined that individuals participating in the deer hunt had no colorable claim of privacy. It concluded that this case presented the same situation as in Brennan v. Bergen Prosecutor, where the Supreme Court said that a public auction, held by a public body, is a “quintessential public event,” and therefore bidders at such an auction have no reasonable expectation of privacy under OPRA. Unfortunately, the Frega court did not explain how hunting in a deer cull that the government has approved is the same as bidding on property at a government-run auction.

The Appellate Division also concluded that the requestor’s interest in obtaining the names of participants in the deer cull outweighed the affected individuals’ privacy interests. The court determined that they had no real privacy interest, because the risk of harm to these individuals was speculative.

The idea that the potential harm here was too speculative to warrant protection under OPRA strikes me as untenable, in view of the many threats of violence that were in the record. The court downplayed these menacing comments as simply “hyperbolic expressions of animosity toward the practice of hunting.” But that’s exactly why there was a genuine risk of harm from disclosure of hunters’ identities: it’s reasonable to assume that this extreme anger at the practice of hunting will be directed at the individuals who actually engage in the hunting.

Moreover, there appears to be no legitimate reason for the requestor to obtain the names of hunters. The opinion says only that the requestor needs this information to inform herself about the efficacy and risks of the deer hunt, without explaining how having participants’ names serves this purpose. In my view, the privacy balancing test clearly favors withholding the hunters’ names.

The Appellate Division’s opinion is not precedential. However, it’s another example of the problems faced by public bodies in attempting to comply with OPRA’s mandate that they protect citizens’ legitimate privacy interests.

Judicial Guidance Needed: What’s A Reasonable Search For Responsive Records Under OPRA?

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The law is clear that a custodian must make a reasonable search for records that are responsive to an OPRA request. However, there’s no law that defines what constitutes a reasonable search, and there are no court cases that provide guidance as to what a custodian must do to satisfy the reasonable search requirement.

The absence of standards governing searches leads to unnecessary, wasteful litigation. A recent Appellate Division opinion illustrates this problem. In Lawyers Comm. for 9/11 Inquiry v. State Police, the requestor asked the State Police for records related to the FBI’s investigation of a suspicious van in East Rutherford during the afternoon of September 11, 2001. The State Police denied the requests on the basis that it had no responsive records.

The requestor challenged this denial in the Law Division, claiming that the State Police did not make a sufficient search for records. In the trial court, the State Police submitted certifications from three officers, who explained how and where they searched, and stated that they found no responsive records. For reasons not described in the Appellate Division opinion, the trial judge required the State Police to submit additional certifications further detailing the search for records. The trial judge ultimately ruled that the State Police made a reasonable search and had “looked in the most logical places where anything related to the 9/11 inquiry would be.”

The Appellate Division affirmed. It noted that the requestor offered nothing but speculation in response to the State Police’s certifications, and that its argument that the search was improper lacked sufficient merit to warrant further discussion.

As can be seen, even though the requestor had no basis to indicate that the search was unreasonable, the agency still had to go to great lengths to prove to the court that its search was reasonable. If there were case law providing guidance as to what is a reasonable search, this matter might have been resolved without litigation. But in the absence of such standards, the requestor felt free to pursue litigation, in both the trial and appellate courts, despite lacking a basis for claiming that the State Police failed to make a legally proper search.

Appellate Division Holds, For The First Time, That Police Body Camera Footage Is Not Exempt As Criminal Investigatory Record

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In an opinion issued today, the Appellate Division held that police body-worn camera footage does not fall within OPRA’s criminal investigatory records exemption. Rivera v. Tp. of Bloomfield.

This exemption applies only to a record pertaining to a criminal investigation that is not required by law to be made, maintained or kept on file. The footage here pertained to a criminal investigation into a 2017 police shooting, but the Appellate Division determined that the “not required by law” prong of the exemption was not satisfied. The court said that an Attorney General Law Enforcement Directive governing police body cameras constituted such a requirement of law, in accordance with Supreme Court OPRA precedent.

Although this is the first appellate opinion to address the important issue of OPRA requests for body camera video, the opinion is unpublished and therefore not precedential. Perhaps the court saw no need to publish the opinion because the law is settled that Attorney General directives have the force of law under OPRA, and the body camera directive clearly requires that footage be made, maintained and kept on file.

It’s important to note that the court did indicate that body camera footage may be withheld, under appropriate circumstances, even though the criminal investigatory exemption does not apply. The pertinent AG Directive gives the prosecutor the discretion to determine, on a case-by-case basis, that law enforcement interests require maintaining confidentiality of the video. However, in this case, according to the court, the prosecutor did not explain the need to maintain confidentiality.

2020 Will See Major OPRA Court Opinions Affecting Law Enforcement Agencies

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The Supreme Court will hear argument this year in two separate cases that challenge longstanding OPRA law protecting the confidentiality of law enforcement officers’ personnel information. The requestors in these cases essentially seek to have the Supreme Court hold that OPRA’s personnel exemption doesn’t apply to law enforcement officers.

FOP v. City of Newark raises the issue of whether records of police internal affairs investigations are entirely exempt under OPRA. And the requestor in Libertarians for Transparent Govt. v. State Police contends that OPRA compels the disclosure of the name of law enforcement officers who were terminated for misconduct.

The Supreme Court’s opinions in these two cases will obviously have a major impact on law enforcement employees. But the treatment of the personnel records of all other types of government employees also is at stake in these cases. The Court is being asked to interpret OPRA’s personnel exemption, which does not differentiate between law enforcement and other public employees. As a result, the Court’s ruling will necessarily affect access to all personnel information under OPRA.