Appellate Division Issues A Problematic New Opinion

The Appellate Division recently issued an odd precedential OPRA opinion. Conley v. NJ Dept. of Corrections. The case presented a routine issue covered by settled law, but the court ignored the existing law and instead applied an incorrect analysis that will surely cause confusion and problems in future OPRA matters.

The request sought from the Department of Corrections a monthly report showing statistics of inmate grievances at various state prisons. Federal and state law require that such statistical records be maintained, and the DOC had previously provided the requestor with reports containing this information. However, this time the DOC responded that it had a new database system in which the monthly reports “are no longer generated or available.” Instead of providing a report, the agency produced statistics drawn from the database.

In response to the requestor’s GRC complaint that the DOC should have provided the monthly reports, the DOC said that there were no responsive records. The GRC affirmed on this basis.

This case is plainly governed by the Supreme Court’s 2017 Paff v. Galloway opinion, requiring that agencies put together requested reports from information in databases. The only question for the court in Conley, therefore, was whether the information sought by the requestor was in DOC’s database.

Inexplicably, the Appellate Division did not mention the Supreme Court’s opinion. Instead, it invented a new analysis that has no basis in the law: the court said that the DOC should have considered “the public-access ramifications” of modifying how it stored its records, and it ordered the agency to produce the requested reports.

The opinion rests on the conclusion that OPRA prohibits public bodies from changing their recordkeeping systems if the change makes it more difficult to access public information. The basis for this interpretation, according to the court, is that government transparency would otherwise be “vulnerable to bureaucratic manipulation.”

This interpretation of OPRA is simply wrong. The statute provides access to existing government records; it does not require that the government keep its records in any particular way.

The court’s new interpretation will create problematic OPRA claims. Requestors will be able to use the Conley opinion to argue, for example, that a public body violated OPRA by failing to maintain certain information, or even by changing its previous recordkeeping practices.



Appellate Division Upholds Confidentiality Of Draft Report

The law is settled that draft documents are confidential under OPRA’s exemption for deliberative material, but requestors still seek access to such records. In an opinion issued today, the Appellate Division upheld the denial of access to a draft report. North Jersey Media v. Clifton.

The report in question was from an accounting firm to the City of Clifton, concerning issues related to changes in the City’s payroll practices. The court determined that the report was clearly a draft, emphasizing that the report underwent several revisions at Clifton’s request. The court then applied the law that predecisional drafts are protected from disclosure under the exemption for deliberative material.

This case is another example of a problem I’ve previously discussed–the cost to the public of meritless OPRA litigation pursued by requestors. Here, the City had to spend public funds defending, in both the trial and appellate courts, its clear legal right to withhold a draft document.

Appellate Division: Reasons For Separation From Employment Are Confidential

The new year has started with issuance by the Appellate Division of an important opinion that addresses a longstanding problematic OPRA question–whether the statute requires public bodies to provide an explanation of the reasons underlying an employee’s separation from employment. The court held that OPRA does not require a public body to disclose information about the circumstances surrounding the separation; this means, for example, where the employee has resigned, the public is not entitled to learn his motivation for doing so. Libertarians for Transparent Government v. Ocean County Prosecutor.

The claim that public bodies must provide an explanation of the reasons why an individual is no longer employed is based on one of the statute’s exceptions to the personnel records exemption, which states that “the date of separation and the reason therefor” must be disclosed. Requestors often argue (as the requestor did in this case) that this phrase means that it is insufficient for a public body to indicate simply that an employee “resigned,” “retired,” or “was discharged.” They contend that OPRA requires the employer to reveal the “real” reasons an employee was separated, even if there are no records reflecting these reasons.

The Appellate Division rejected this argument as contrary to the statute’s plain language and intent. It held that the Prosecutor’s Office complied with OPRA’s requirement by indicating that the employee in question had resigned. The court refused to read into the statute the obligation to create records containing an explanation of the reasons underlying the resignation.

This is the first time an appellate court has addressed this issue. Unfortunately (and surprisingly), the opinion is not a published, precedential opinion.

OPRA Law Forecast For 2018: Major Court Opinions And Increased Litigation

The past year saw the largest number of important OPRA legal developments in the history of the statute.  While 2018 is unlikely to produce as many landmark cases as 2017, there will certainly be major court opinions that will have a substantial impact on public bodies. Also, I think this year will produce more OPRA litigation than ever before.

The Supreme Court has two highly significant OPRA cases on its docket that will be decided in 2018:

-Brennan v. Bergen County Prosecutor- The Court will consider whether OPRA compels disclosure of the names and addresses of people who successfully bid at an auction of public property. This will be the first time the Court will address a question that has plagued OPRA custodians and their attorneys since OPRA was enacted–what is the extent of privacy protection that must be afforded to home addresses?

-Paff v. Ocean County Prosecutor- This case also involves a critical privacy issue: do people shown in police dash cam videos have privacy rights? In addition, the Court will decide a key law enforcement record issue: does the criminal investigatory record exemption apply to dash cam video, where the video is made pursuant to an order of a local police chief?

In addition to these Supreme Court cases, I anticipate that a large number of important OPRA opinions will be issued by the Appellate Division and trial courts in 2018. I think this year will involve even more OPRA litigation than in past years, as requestors will seek to test how to interpret the many major court opinions that were issued in 2017. This should result in many issues of first impression being presented to the courts.


2017 Review: The Most Important Year For Legal Developments In OPRA’s History

2017 was the most significant year for OPRA law since the enactment of the statute in 2002. The Supreme Court decided four OPRA cases in 2017, a remarkably high number in view of how few cases the Court grants review of each year. The Supreme Court and the Appellate Division issued many important rulings during this past year, which dealt with a number of crucial OPRA questions and dramatically reshaped OPRA law.

The Lyndhurst case, a landmark opinion involving the Court’s first interpretation of OPRA’s law enforcement records provisions, received the most attention from the media, which portrayed it as requiring greater public access to law enforcement records. As I’ve previously explained, this is simply wrong; the Supreme Court in fact held that most records connected with criminal investigations are not accessible under OPRA.

While the Lyndhurst opinion is extremely significant, I think the Supreme Court’s opinion in Paff v. Galloway Twp. will have a greater day-to-day effect on all public bodies. The Court’s determination that OPRA requires public bodies to produce any type of requested report from information in electronic databases will greatly increase the workload of those responsible for dealing with OPRA.

The Supreme Court’s other two opinions are important as well. The Court, in Matter of NJ State Firemens Assn Obligation to Provide Relief Applications, confirmed that OPRA strongly protects individuals’ privacy rights, and also addressed, for the first time, the ability of public bodies to file declaratory judgment actions concerning OPRA issues. And in Verry v. Franklin Fire Dist., the Court held that volunteer fire companies are not subject to OPRA.

The year is notable simply due to these Supreme Court rulings, but it should not be overlooked that the Appellate Division also issued a number of significant OPRA opinions, including several groundbreaking precedential opinions:

-North Jersey Media Group v. Governor’s Office–trial judges may impose fines for OPRA violations

-L.R. v. Camden School Dist.–student records are not accessible under OPRA

Scheeler v. Governor’s Office--OPRA requests are public records

Stop & Shop v. Bergen County–mootness of OPRA lawsuits


Appellate Division Upholds Confidentiality of Governor’s Office Decisionmaking

With Governor Murphy’s inauguration only a few weeks away, the Appellate Division issued a timely opinion reaffirming that records showing the deliberations of the Governor’s Office are entitled to confidentiality.

New York Public Radio v. Office of the Governor involved an OPRA and common law request for “town priority lists” (TPL), which were used several years ago by Gov. Christie’s office to determine the municipalities that the office would focus on to build support for the Governor. In 2016, the Appellate Division held that these documents were exempt under OPRA as deliberative material, but remanded for consideration of requestor’s common law claim.

The trial judge denied the common law claim, and the requestor appealed. On December 19, 2017, the Appellate Division upheld this denial of access.

The opinion doesn’t indicate what argument the requestor made to claim that there was an interest in public disclosure of the lists. It doesn’t appear the requestor had much of an argument in this regard, as it even emphasized to the court that the TPLs were no longer in use.

In any event, the Appellate Division did not base its ruling on its evaluation of the strength or weakness of the requestor’s interest in disclosure of the TPLs; instead, the court focused on the substantial public interest in maintaining the confidentiality of communications reflecting governmental decisionmaking. Notably, it stated that this interest remains strong even after the decision has been made.

It’s useful to have a reminder from the Appellate Division of a crucial aspect of effective government operation–that deliberative material is entitled to a strong presumption of confidentiality.



Appellate Division Upholds Agency’s Decision To Redact Employee Resumes

In an unpublished opinion issued today, the Appellate Division rejected the argument that OPRA requires the disclosure of employee resumes with no redactions. Scheeler v. NJ Dept. of Children and Families.

OPRA exempts personnel records, which includes resumes, from disclosure. The statute permits only limited resume information to be disclosed–information which shows that a public employee meets the specific education and experience qualifications that are prerequisites for his job. In this appeal, the agency complied with the statute and released employee resumes with much information redacted.

The requestor argued that Executive Order 26 (McGreevey) overrides this statutory requirement and mandates release of unredacted resumes. The Appellate Division rejected this position, because it would nullify the legislative protection of personnel records in OPRA.

The court’s conclusion that the executive order cannot supersede the statute seems self-evident, but nevertheless OPRA requestors often rely on Executive Order 26  in seeking access to resumes. For example, see this post concerning an (unsuccessful) effort to obtain applicants’ resumes. The appellate and trial courts have consistently rejected the Executive Order 26 argument and upheld the confidentiality of resumes, but there is no precedential opinion addressing this precise issue.

Does OPRA Require “Immediate Access” to Litigation Settlements?

Last month, in  Scheeler v. Galloway Tp., the Appellate Division held, for the first time, that public bodies must give requestors “immediate” access to all litigation settlements, including releases. In my view, this holding misinterprets OPRA.

The Appellate Division’s analysis was straightforward: the statute requires that custodians provide immediate access (rather than taking 7 business days to respond) when in receipt of a request for certain types of records; one of the designated records is “contracts;” and a settlement is a contract.

But the OPRA provision in question is not really so clear. The statute doesn’t simply state that immediate access is required for “contracts;” instead, it says, “contracts, including collective negotiations agreements and individual employment contracts.” This means that the statute does not automatically cover all contracts and agreements; if it did, the Legislature would not have needed to add language explaining that union agreements and employment contracts are included.

I think the Legislature added this specific language because its intent was to mandate immediate access only to records that public bodies are capable of producing quickly. What these records have in common with the other records listed in the immediate access section is that the custodian typically can quickly obtain them. Union and employment contracts, as well as salary information, will be on file with the personnel department, and contracts for goods and services will be on file with the purchasing/finance department.

In contrast, as the Appellate Division has previously recognized, litigation settlements are often not even held by the public body itself, but may be in the possession of various outside agents, such as law firms and insurers. As a practical matter, it will be impossible for most custodians to “immediately” provide access to this type of record, meaning that OPRA should not be interpreted to impose this requirement.




An Important Appellate Ruling: Attorney Fees May Not Be Awarded In OPRA Litigation That Doesn’t Involve Access To Records

The Appellate Division recently issued an important opinion concerning the limits of OPRA’s attorney fee award provision. The court held that a plaintiff who does not seek access to records, but instead claims the public body otherwise is not complying with OPRA, is not entitled to an attorney fee award for litigation success. Kennedy v. Montclair Center Corp. Business Improvement District.

After Kennedy filed a complaint, the District provided him the records he had requested, but denied that it was subject to OPRA. Kennedy litigated over this issue, and eventually the Appellate Division issued an opinion declaring that the District is an agency covered by OPRA. Kennedy then sought over $145,000 in attorney fees related solely to the litigation he pursued after receipt of the requested records.

The court determined that OPRA provides attorney fees only to requestors who succeed in obtaining access to records. Kennedy was not such a requestor–he had already received access to the records he asked for (with attorney fees for that part of the litigation), and the additional litigation over whether the District is subject to OPRA did not result in providing any records to him.

In short, the court said that OPRA is not intended to give fees to those who file litigation to enforce aspects of OPRA, rather than to obtain records.

I’m surprised that this important opinion is not published and precedential. The Appellate Division had never dealt with this issue before, and there have been cases where lower courts have incorrectly ruled that attorney fees may be awarded under OPRA even where the requestor did not gain access to records.

Appellate Division Rejects Another OPRA Requestor Assault On Government Employees’ Personal Privacy

Some requestors attempt to use OPRA to evade basic notions of privacy and gain access to personal information held by the government. This post from early 2017 discusses how public bodies frequently must defend OPRA litigation seeking disclosure of clearly private information. A recent Appellate Division case presents yet another example of this.

In Wolosky v. Boro of Washington, the requestor sought the municipal clerk’s 2015 payroll record. The Boro provided this document, redacting the deductions for pension contributions, pension loan payments and health insurance payments. The Appellate Division upheld this decision, because the redacted material is exempt personnel information.

The requestor also argued that the employee’s privacy interest in the withheld information should not block disclosure. The Appellate Division agreed with the trial judge’s rejection of this claim. The trial judge said that any public interest in disclosure of how much money the employee contributes for her health insurance and pension is “heavily outweighed” by her expectation of privacy in this information.