Tag Archives: Court opinions

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.

2023 OPRA Case Law Review

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The courts issued were many OPRA case rulings during 2023, but only a handful of precedential opinions. However, the three precedential opinions resolved crucial government records law questions.

In June, the Supreme Court issued a landmark opinion, Gannett v. Neptune Tp., holding that a successful common law records requestor is not entitled to an award of attorney fees. This ruling ended decades of uncertainty as to whether common law requestors, like OPRA requestors, may demand that public bodies pay their litigation fees.

The Appellate Division issued two published opinions involving OPRA. Just before the end of the year, the court determined that the custodian had properly withheld disclosure of a body worn camera video under OPRA’s exemption for the confidentiality of law enforcement records concerning a person who has not been arrested or charged with a crime. Fuster v. Tp. of Chatham. This holding rested on the court’s resolution of an issue of first impression–it concluded that the disclosure exemptions of the body worn camera statute do not rescind other exemptions provided for in OPRA.

Lipsky v. NJ Assn of Health Plans dealt with a frequent issue for OPRA custodians–how to respond to a request for records potentially contained within employees’ cell phones. The Appellate Division ruled on a discovery dispute, holding that a party in pending litigation may not compel a non-party State agency to turn over its employees’ State-issued and personal cell phones to the party’s expert for forensic examination. This conclusion relied heavily on OPRA law. The Appellate Division emphasized that public employees have strong privacy interests in their phones’ contents, so where there’s an OPRA request for records from employees’ phones, it is improper for the agency to search the device for responsive records. Instead, to protect the privacy interests at stake, the agency must ask employees to conduct the search of their devices for responsive records.

Appellate Division: Police Body Cam Video Revealing Criminal Allegations against an Individual who was not Charged With A Crime Is Not Disclosable Under OPRA and the Common Law

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The Appellate Division, in a recent published opinion, addressed an issue of first impression: whether the exemptions from disclosure of a police officer’s body worn camera (BWC) footage, which are set forth in the statute governing such cameras, abrogate other disclosure exemptions found in OPRA. The court determined that although the BWC statute provides for withholding BWC videos under certain circumstances, OPRA’s exemptions also continue to apply to such videos.

Specifically, the court held that the custodian had properly withheld disclosure of a BWC video under OPRA’s exemption for confidentiality recognized by case law–here, the confidentiality accorded to law enforcement records concerning a person who has not been arrested or charged with a crime. Fuster v. Tp. of Chatham.

Fuster went to the police with allegations that a relative had engaged in criminal sexual misconduct. Fuster was interviewed about his allegations at the police station, and the interview was recorded by an officer using a BWC. The police and other agencies investigated further and eventually decided not to file charges against the relative.

Fuster subsequently filed with the police department an OPRA and common law request for the BWC video. It was not disputed that the video fell under OPRA’s exemption for the recognition by case law of the need for maintaining the confidentiality of investigative records regarding a person who has not been arrested or charged. Instead, the requestor argued that the OPRA exemption could not be applied, on the ground that the Legislature abrogated this exemption in the BWC statute, enacted in 2021.

The requestor’s claim rested on the fact that the BWC statute provides for a few specific situations where a BWC video may be withheld from public disclosure (none of which applied to the video in this case). Based on this, the requestor reasoned that the Legislature intended to rescind all other OPRA exemptions with regard to BWC videos.

The court rejected this argument; it concluded that the legislative purpose of the BWC statute was not to override OPRA, but rather to add some exemptions to OPRA’s existing exemptions. The court saw no basis for concluding that the BWC statute meant to abolish OPRA’s requirement that a record that would disclose the identity of a person who was never arrested or charged with a crime must be kept confidential.

The court also held that under the common law, the requestor’s interest in disclosure of the video did not outweigh the strong privacy and investigatory interests that support confidentiality of the record in question here.

Appellate Division: No OPRA Violation Where Custodian Was Temporarily Unable To Search For Records Due To Covid Shutdown

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In an unpublished opinion, the Appellate Division determined that a public body acted appropriately, and did not violate OPRA’s response deadline, where it told the requestor it would search for the requested records after the end of a Covid shutdown. C.E. v. Elizabeth Public School Dist. This is the first appellate opinion to deal with the effect of pandemic closures on the handling of an OPRA request.

The OPRA request was submitted to the School District in May 2020, when all District schools and offices were closed indefinitely due to Covid. As a result, the District advised the requestor, “we will respond to your request for records when circumstances allowing for the reopening of the District and access to records permit.” It explained that the search of the records sought could only be done on the premises. The District eventually provided the requested records in March 2021, shortly after being able to return to the office.

The appeal concerned the requestor’s claim for attorney fees, based on the catalyst theory–that its litigation, which it had filed in the Law Division in 2020, caused the release of records in 2021. The Appellate Division rejected this argument because the District had not refused to disclose any records; instead, its answer to the OPRA request was that it would produce responsive records when able to do so. The requestor’s litigation, said the court, did not cause the District to release the records.

The requestor attempted to avoid this conclusion by arguing that the District’s initial response should be deemed a denial of the request, because the District did not fulfill the request within OPRA’s 7-business day deadline. The court found this argument to be flawed, because the Legislature suspended this OPRA response deadline during the Covid emergency. Instead of requiring the custodian to respond within a specific time frame, the statute stated that a custodian must make a reasonable effort under the circumstances to respond. The Court concluded here that the District did make a reasonable effort, given the impact of the Covid-related closure on its ability to search for responsive records.

Supreme Court Holds That There Is No Right To Attorney Fees In Common Law Records Requests

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A successful OPRA plaintiff is entitled to an award of attorney fees, but for the past 15 years, it has not been clear whether a litigant who obtains records only under the common law right to records may be awarded attorney fees. The Supreme Court has finally resolved this important issue, holding that successful common law requestors have no entitlement to attorney fees. Gannett Sat. Info. Network v. Tp. of Neptune.

Despite the absence of any legal basis for requiring public bodies to pay a common law requestor’s attorney fees, since 2008 the courts often ordered such awards, relying exclusively on a sentence in the Supreme Court opinion in Mason v. City of Hoboken, an OPRA case. The sentence seems to say attorney fees may be awarded in common law records cases. But as I stated in this 2021 analysis, Mason did not hold, and should not be understood to suggest, that attorney fee awards are permissible in common law records matters.

In Gannett, the Court agreed; it said that the Mason opinion’s “brief allusion” to common law attorney fees was not a ruling on the question of whether they are required. In directly deciding this issue, the Gannett Court unambiguously held that attorney fees may not be awarded to a successful common law requestor.

This ruling is hugely important. OPRA’s mandatory attorney fee award provision imposes substantial costs on public bodies: not only must they pay attorney fees to successful OPRA litigants, they also incur the expense of having to litigate the attorney fee portion of the OPRA case. These costs now do not apply to common law record requests.

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.

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.

New Published Appellate Division Opinion Provides Guidance on How to Handle OPRA Requests That Require Search of Employees’ Cell Phones

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The Appellate Division issued an interesting published opinion that deals with a discovery issue, but also contains useful guidance for handling OPRA requests that involve searching employee cell phones for responsive records. The court made clear that it is up to the the employees themselves to conduct the search of their phones.

Lipsky v. NJ Assn of Health Plans dealt with a dispute over a discovery request to a State agency for records potentially contained within agency employees’ cell phones. The Appellate Division held that a party in pending litigation may not compel a non-party State agency to turn over its employees’ State-issued and personal cell phones to the party’s expert for forensic examination. The court determined that this violates civil discovery legal requirements as well as the employees’ constitutional privacy rights.

In explaining the reasons why the trial court’s order was erroneous, the court relied in part on OPRA law. It noted that under the discovery rules, the agency has no obligation to produce data from employees’ devices unless it has “possession, custody or control” over that data. Under OPRA, the court said, the agency only has such possession, custody or control over the government records that are within the employees’ phones. While these records are subject to disclosure under OPRA, the court recognized that employees’ phones typically also contain much personal, confidential information which is not a government record.

The Appellate Division emphasized that public employees have strong privacy interests in their phones’ contents, so where there’s an OPRA request (or discovery demand) for records from employees’ phones, it is improper for the agency to search the device for responsive records. Instead, to protect the privacy interests at stake, the agency must ask employees to conduct the search of their devices for responsive records.

This is the first time a court has directly addressed, in a published opinion, how an agency should handle an OPRA request that involves searching an employee’s cell phone.


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.

Appellate Division: An OPRA Request Submitted to Public Body’s Outside Attorney is Not Valid

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On June 21, the Appellate Division issued an opinion on a novel issue: whether an OPRA request may validly be submitted to the outside attorney for a public body, rather than to the custodian. The court held that such a request is invalid, because OPRA requires that requests be made to the custodian of records. S.W. v. Elizabeth Board of Ed.

The requestor in this case sought records of the Elizabeth Board of Education by sending an OPRA request to the Board’s “solicitor.” The opinion doesn’t say, but I understand this term to mean the outside attorney representing the Board, rather than an attorney who is a Board employee. The request was denied because it had not been sent to the custodian, nor to an officer, employee, or office of the school district.

The court upheld this denial as consistent with OPRA’s clear requirement that a request must be submitted to the agency’s custodian. It also rejected the claim that the Board’s attorney was covered by the statutory requirement that “an officer or employee of a public agency” who receives an OPRA request must forward the request to the custodian. Plainly, an outside attorney representing the agency is not an “officer or employee” of the agency.

The Appellate Division also addressed an issue that I discuss in my program on OPRA and the Rules of Professional Conduct, but that’s never been considered previously by a New Jersey court: whether RPC 4.2 prohibits a party that’s sued a public agency from submitting an OPRA request directly to the agency. The RPC prohibits direct communication with a client known to be represented by counsel; is submission of an OPRA request to the custodian, where the agency is represented by an attorney, covered by this rule? The court said it is not, emphasizing that the RPC actually exempts from its prohibition communications with the government, such as OPRA requests. Specifically, RPC 4.2 contains an exception for when the law authorizes such direct contact, to ensure “a citizen’s right of access to government decision makers.”

This is the first time a New Jersey court has addressed this ethics issue (although courts in other states have reached the same conclusion with regard to their public records laws and the RPCs). It’s unfortunate that the court’s opinion is not published, but it nevertheless provides helpful guidance.