Tag Archives: Appellate Division

Precedential Appellate Division Opinion Confirms: Emails about Government Business are Subject to OPRA, Despite Being On A Personal Account

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Since OPRA’s enactment, it’s been understood that communications concerning government business are government records under OPRA, even though they were sent from, or to, the personal devices of government officials. This principle rests on the common sense basis that OPRA would have little meaning if public bodies could avoid its requirements by communicating through personal emails and texts, rather than governmental accounts.

But although the GRC has expressly adopted this principle (Meyers v. Fairlawn) and the Appellate Division has implicitly applied it, in a discovery matter involving public employees, no precedential court opinion had directly addressed this. The Appellate Division did so for the first time, in a recent published opinion, Assn for Govt Ethics etc. v. Boro of Mantoloking. In this case, the court expressly held (citing the above GRC ruling) that an email concerning government business, despite being sent to a municipal prosecutor’s personal account, was covered by OPRA.

The rest of the court’s opinion dealt with several other OPRA issues, but its holdings on these questions are of limited import because of the specific facts of the case, which are unlikely to come up again in future cases. Both the majority and dissenting opinions characterized this matter as presenting “unique” circumstances. I would go further and say the facts of this case are extremely odd.

In preparing for a prosecution, a municipal prosecutor sought counsel from another attorney about how to handle an issue in the case. The attorney sent the advice in an email to the prosecutor’s personal account. The prosecutor later read this email aloud, in court, and gave a printed copy of the email to the defense, but redacted the sender’s name and email address. The OPRA request sought the redacted identity of the attorney who sent the email.

The Appellate Division upheld the confidentiality of the requested information, for a variety of reasons. It analogized the situation to the confidentiality accorded to advisory, consultative and deliberative material; additionally determined that the attorney had a reasonable expectation of privacy in not having their identity disclosed; concluded that the common law did not warrant disclosure; and said that the information was also exempt under the privilege for an attorney’s work product.

In my view, this last point was the key issue in this matter. It’s clear that the email was subject to the work product privilege, as part of the prosecutor’s preparation for litigation. The dispositive question is whether the prosecutor waived this privilege by disclosing the email’s contents during the court proceeding. The majority opinion concluded the privilege had not been waived as to the identity of the sender of the email, while the dissent determined that the prosecutor did waive the privilege by her actions in court.

I suspect that when the Supreme Court decides this case–which is highly likely, since an appellate opinion with a dissent is appealable to the Supreme Court as of right–the Court will focus primarily on the work product privilege waiver issue. Hopefully, the Supreme Court’s opinion will also provide clear guidance concerning the application of OPRA to governmental communications sent to personal devices.

A Significant Court Ruling: A Prolific OPRA Requestor is Not Allowed to Make OPRA Requests

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Over the past several years, an organization named the African American Data and Research Institute (AADARI) has been a frequent OPRA requestor and litigant. I don’t know how many requests AARDI has made, but it often files challenges to OPRA denials in the GRC and the courts. About half of the cases decided by the GRC in recent have listed as the complainant, “Rotimi Owoh, Esq. (o/b/o African American Data & Research Institute).” And the AADARI, always represented by Mr. Owoh, has litigated a number of Appellate Division and Supreme Court OPRA cases.

However, the Appellate Division recently held that the AADARI does not have the legal capacity to make OPRA requests or to authorize an attorney to act on its behalf, either to make OPRA requests or to file litigation. AADARI v. Hitchner, et al.

This case involved various OPRA and common law requests made by Attorney Owoh on behalf of AADARI. However, the record before the Appellate Division showed that AADARI is a corporation whose sole member is Owoh’s son, O.S., who suffers from a mental illness and is mentally incompetent. The court concluded the corporation did not have the legal ability to take any of the actions involved in the OPRA matters. The corporation can only take actions through its members, but AADARI’s only member, O.S., is not able to do so because of mental incompetence; according to the court, he “does not possess the capacity to retain Owoh, request the records, or decide to file suit.”

For the same reason, the court said, the corporation lacks the legal ability to file an OPRA court action. The entity cannot satisfy the court rule that its action be supported by the required verified complaint –no one in the corporation could attest to the truth of the claims. As a result, the Appellate Division dismissed the complaints.

It’s not clear what effect this ruling will have on future OPRA litigation. The AADARI could, of course, reorganize with new members to remedy the problem discussed above. But for now, this frequent requestor is precluded from making OPRA requests or litigating over prior denials of its purported requests.

Once Again, Appellate Division Rules That A Request Requiring Research Is Invalid

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It’s a bedrock OPRA principle, stated consistently by the courts, that a request must be for a specific record, and cannot require the custodian to conduct research to fulfill the request. For this reason, the Appellate Division recently upheld the denial of a request that sought the “real reason” for the separations of various police officers from employment. Owoh v. Maple Shade Police Department.

The request asked the police department for personnel information that’s not exempt from disclosure under OPRA–the “[n]ames, date of hire, date of separation and reason for separation and salary of
individuals who…[were separated] in the last [five] years from [the] police department.” The department provided the requested information. For the reasons for separation, it properly indicated whether the officer resigned, retired or was terminated.

The requestor objected that this did not show the “real reason” for separation, which might be due to a plea agreement or a conviction. The court rejected this argument, concluding that the department complied with OPRA by giving the requestor the reasons for the officers’ separations.

Regarding the requestor’s interest in finding the so-called “real reasons” for officers’ separations from employment, the court indicated that the custodian was not obligated to try to figure out what records might contain such information. The court emphasized that the request did not identify any specific records that have the “real reasons,” and the custodian was not required to conduct research and analyze the agency’s records to attempt to find this information.

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.”

Two Recent Appellate Division Opinions Consider Whether OPRA Requires Disclosure of Personal Email Addresses

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It’s not clear whether OPRA requires a public body to disclose a personal email address that it has in its possession. While there’s a good argument that OPRA’s privacy section protects individuals’ email addresses, as recognized by the GRC and some unpublished court opinions, there is no definitive, precedential ruling on this issue.

The Appellate Division recently addressed this question, but did so in two unpublished, non-precedential opinions that reached different conclusions due to the different circumstances presented in each. Although these opinions are fact-specific, they are instructive for how custodians should deal with a request for personal email addresses.

In Brooks v. Twp. of Tabernacle, the Appellate Division determined that the email addresses had to be released. The OPRA request sought the names and email addresses of those who had emailed with certain Township officials and employees. The court stated that OPRA’s privacy section does apply to a personal email address, because a person has a colorable claim that disclosure of this information would invade their objectively reasonable expectation of privacy. But although the claim is colorable, the court applied the required balancing test and concluded that the privacy interest of the individuals here was mimimal, and was outweighed by considerations favoring disclosure of the requested email addresses.

In reaching this conclusion, the court placed substantial emphasis on the fact that the government had the addresses due to the decision of these members of the public to engage in email exchanges with public officials and employees about public business. The court said such discussion is “an inherently public activity,” making it unreasonable for anyone to “believe they have a right to cloak their contacts relating to public business in secrecy.”

In contrast, in Rise Against Hate v. Cherry Hill, decided by the same panel of judges on the same day, the email addresses held by the government did not result from email exchanges about public business. Instead, residents had given the municipalities their email addresses for the purpose of receiving newsletters and notices from the municipalities. Applying the same legal analysis as it did in Brooks, the court this time concluded OPRA’s privacy protection required withholding the addresses from disclosure.

The key to the ruling in this case was that the residents provided their email information to the municipalities for receipt of “periodic, generic newsletters and notices,” rather than engaging in email dialogue with public officials about public business. This tipped the balance of interests in favor of privacy.

These opinions are not precedential for future OPRA requests for email addresses. However, it’s significant that the court saw OPRA requests for email addresses as presenting a colorable claim of invasion of privacy, confirming that custodians should assess such requests under the fact-specific balancing test.

An Important Reminder from the Appellate Division: OPRA Complaints must be Verified, and Supported by Affidavit Based On Personal Knowledge

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It’s well settled that an OPRA complaint must be filed as a summary action, which requires filing an order to show cause, with a verified complaint supported by an affidavit that states the facts based on personal knowledge. However, I’ve handled cases where the requestor’s attorney overlooks this basic requirement. The failure to follow the summary action procedures requires dismissal of the complaint.

The Appellate Division recently issued an unpublished opinion confirming this principle. It said that the summary action procedures “may not be bypassed by [OPRA] plaintiffs,” and non-compliance with these rules renders the complaint a “nullity.” African American Data and Research Inst. v. Hitchner.

In this case, the trial judge determined that the OPRA plaintiff’s failure to verify the complaint, and to submit a supporting affidavit, did not matter, and issued a ruling requiring disclosure of some of the requested documents. The Appellate Division reversed, and dismissed the complaint. The court emphasized that the failures to verify the complaint and submit an affidavit in an OPRA suit are “fatal procedural deficiencies.”

Appellate Division Discusses the Proper Way to Handle an OPRA Request Sent to the Wrong Agency

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In Owoh v. City of Camden, the Appellate Division recently dealt with what it characterized as a “case of mistaken identity”–the requestor asked the City of Camden for records of the County of Camden. The request sought various police department records from the City, but since 2013, the City has had no police department, and the County Police Department handles all policing in the City. The court held that the request in question could only be answered by the County, the public entity that maintains the records in question.

After reaching this unremarkable conclusion, the court dealt with an issue that is of interest to all record custodians–the obligations imposed by OPRA when a request is submitted to an agency that isn’t the custodian of the record. According to the Appellate Division, this situation is governed by OPRA’s requirement that the person in receipt of the request must either “forward the request to the custodian of the record or direct the requestor to the custodian of the record.”

The court rejected requestor’s argument that the City was required to respond to its misdirected request by obtaining the records from the County. As the court pointed out, OPRA does not require this. The City here followed the plain language of the statute, by directing the requestor to the proper custodian; it notified the requestor that the County was the custodian of the records sought, and gave a County phone number to contact with reference to the request.

Appellate Division: Rutgers Football Team’s “All-22” Video is Exempt from OPRA

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The Appellate Division has issued an interesting opinion on whether OPRA requires release of Rutgers’ “All-22” videos of its football games. Caroff v. Rutgers. This type of video is used by professional and college football teams because it shows what all players did during a play. According to the court, the specific video requested from Rutgers is an “edited, compilation of digital video recordings” of a football game, with footage showing “a wide-angle sideline shot focused to include all twenty-two players on the field,” plus a second shot “focused to capture the line formation for each given play.”

The Appellate Division held that this video is exempt from disclosure under OPRA under three exemptions: proprietary information; disclosure that would give competitors an advantage; and exempt under federal law.

The court determined that the video is proprietary, based on Rutgers’ explanation that the coaching staff uses the video in evaluating and refining the team’s plays. In addition, the football program “obtain[s] scouting information on their opponents by providing access to their proprietary All-22 videos to their opponents in exchange for their opponents’ reciprocal grant of access to the opponents’ proprietary All-22 videos.”

The necessity of trading All-22 videos with opponents also means that the competitive disadvantage exemption is applicable. Making the videos public would destroy Rutgers’ ability to obtain their competitors’ videos. The court explained that if Rutgers’ videos were publicly accessible through OPRA, then other teams would simply obtain them that way, and would have no incentive to exchange videos with Rutgers.

The court also said that the video is exempted from disclosure under federal law, because it is a copyrightable work of Rutgers. This is a ruling of first impression–there is no case law dealing with the issue of whether a record that has been copyrighted may be withheld under OPRA. However, in addition to the opinion being unpublished, and therefore not precedential, it contains no analysis of the interplay between OPRA and copyright law. The court simply stated that the video fell within OPRA’s exemption for federal law confidentiality, due to its status as a copyrighted work.

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.