Tag Archives: OPRA

Substantial Revisions to OPRA Enacted

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As readers of this blog know, on June 5th the Governor signed into law a bill that, for the first time since OPRA’s inception, significantly revises the law. Over the next several weeks, I’ll publish posts analyzing each of the various new provisions in the statute. Today, I want to make a few general comments about this comprehensive revision of OPRA.

Requestors, the media, and other organizations that oppose the bill have levelled the charge that enacting the bill has “gutted” government transparency under OPRA. I disagree. OPRA continues to provide public access to most records made, maintained or received by the government. The statute’s key requirements governing requests for government records, and responding to requests, have not changed.

The claim that the new legislation undermines public access is based primarily on the fact that attorney fees will now not be automatically awarded to a requestor who succeeds in OPRA litigation. This argument rests on two premises: without mandatory fee awards, attorneys will not take on cases for OPRA requestors; and without the prospect of such awards, public bodies will have less motivation to comply with OPRA.

But OPRA, as revised, still provides for fee-shifting. It states that a court or the GRC “may” award attorney fees to a prevailing requestor; moreover, if the agency unreasonably denied access, or otherwise acted in bad faith, an attorney fee award is mandatory. So there is still a substantial threat that a public agency will have to pay the requestor’s attorney fees when there is litigation.

It appears, as indicated in the Governor’s bill signing statement, that OPRA now follows the model of the federal FOIA, which gives a court discretion to award fees to a prevailing requestor, and requires consideration of the reasonableness of the government’s denial of access in making this determination. I’m not aware of FOIA requestors having problems retaining attorneys for litigation.

The other reason given for claiming that OPRA will no longer be effective focuses on the new provision that allows public entities to sue for a protective order where the requestor sought records “with the intent to substantially interrupt the performance of government function.” The argument is that this threat of being sued will deter people from making requests.

This logic doesn’t hold up. The section does not apply to the typical requestor who is legitimately seeking records, and it’s appropriate for the Legislature to provide a means to deal with someone who uses OPRA to interfere with government.

In addition, I doubt there will be much of a deterrent effect because I think this type of protective order suit will rarely be filed. First, such a complaint may be filed only after the public body has made a “good faith effort to reach an informal resolution of the issues relating to the records requests.” And if this step doesn’t work out, there is an exceptionally high bar to filing a complaint against the requestor: it’s often very difficult to prove in court what the requestor’s intent was, and this is heightened even more by the fact that the statute says this intent must be proven by clear and convincing evidence, an extremely strict burden of proof.

In short, OPRA has not been severely weakened. I think requestors will continue to use OPRA as extensively as they have over the past 22 years of the statute’s existence.

The present situation reminds me of the state of affairs when OPRA was originally enacted, and I was overseeing OPRA legal issues for the Attorney General’s Office. Over the first several years of the statute’s existence, we fielded countless questions, and handled many litigation matters, concerning how to interpret OPRA’s provisions. I expect public bodies throughout the State will similarly have numerous questions, and face a lot of litigation, over the meaning of the new language of OPRA.

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.

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.

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.

New Precedential Appellate Division Opinion: Settlements of IDEA Cases in the OAL Are Accessible under OPRA

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The Supreme Court ruled in 2019 that student records may not be accessed under OPRA (although they may be disclosable as permitted by certain Department of Education regulations). L.R. v. Camden School Dist. In a published opinion issued on May 18, 2022, the Appellate Division held that L.R. does not apply to settlements of OAL cases involving IDEA special education challenges. As a result, these settlements must be disclosed under OPRA. C.E. v. Elizabeth Public School Dist.

The court noted that L.R. did not apply because the IDEA was not at issue in that case. The court therefore determined that the applicable IDEA regulations governed the request in C.E. These regulations designate the OAL to hear special education complaints under the IDEA, and say that settlements of these cases are incorporated into an ALJ’s initial decision approving the settlement. Federal law requires making these decisions public, after removal of any student-identifying information.

In accordance with these requirements, the Appellate Division upheld the release under OPRA of the requested settlements, with identifying information redacted.

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.