Author Archives: lscheindlin

Supreme Court: Custodians Should Be Trained In Handling Common Law Records Requests

In Gannett v. Neptune Tp., its recent opinion holding that common law record requestors have no right to attorney fees, the Supreme Court took the unusual step of recommending that custodians receive training in how to deal with common law requests. As I’ll explain, public entities that fail to provide this suggested training run the risk of paying requestors’ attorney fees and court costs.

Noting that common law record requests often present complex issues, the Court

recommend[ed] that municipal clerks and other records custodians
for public entities receive comprehensive training with respect to common law
right of access claims, and that they be directed to carefully review each
request and provide a response that comports with the law.

Although the Court’s recommendation is not a binding directive, its opinion suggests a potential adverse consequence if a custodian does not receive appropriate training. The opinion states that attorney fees are not automatically awarded in common law matters, to enable public entities “to formulate a good-faith legal position on the disputed information and to litigate that position, without the risk of an award of attorneys’ fees in the event that a court later rejects it.” But the Court then cautions that the sanctions for frivolous litigation positions–which include awarding attorney fees–still apply to common law record disputes. According to the Court, these sanctions may be imposed where a custodian denies a request for a record that the Court has previously deemed to be subject to disclosure under the common law.

In short, the Court has signaled that if a custodian has not been trained in the common law right of access to records, and incorrectly rejects a request for a record that case law has determined to be disclosable under the common law, the public entity will face the risk of monetary sanctions.

I offer training programs regarding the common law right to records, for both custodians and attorneys. Please contact me at lewscheindlin@gmail.com if you are interested.

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

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.

Does A Prolific Records Requestor Actually Exist?

Over the past several years, the African American Data and Research Institute (AADRI) has filed numerous OPRA requests and litigated many OPRA cases, including several Supreme Court and Appellate Division cases. In all of these matters, attorney Rotimi Owoh represented the AADRI. But a current GRC case, Rotimi Owoh, Esq. o/b/o ADARI v. Bayonne, raises the claim that the AADRI is not a real entity, and instead is actually the alter ego of Mr. Owoh.

This question must be answered to determine whether the AARDI is entitled to an attorney fee award as the prevailing party in the GRC litigation. The requestor prevailed here, as the GRC determined that Bayonne did not properly respond to the OPRA request. However, under fee-shifting statutes such as OPRA, it’s clear that an attorney who litigates on behalf of himself, instead of representing a separate client, may not receive an award of attorney fees. In the GRC case, Bayonne argues that it is not liable for attorney fees because attorney Owoh, who handled the GRC litigation, was the true requestor.

Specifically, Bayonne contends the AARDI is a “sham” entity. It alleges the organization is registered at Owoh’s home address, and Owoh’s family members are the Institute’s members. Owoh disputes Bayonne’s claim that AARDI does not exist. The GRC referred the matter to the OAL to engage in fact-finding and resolve whether AARDI is an entity that is separate from Mr. Owoh.

The AARDI is entitled to an attorney fee award if it is a genuine, separate organization. But if it’s not, then there’s the unfortunate result that many public bodies have paid unwarranted attorney fees for Mr. Owoh’s work in previous OPRA cases involving the AARDI.

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

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

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

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.

The Supreme Court Takes a New OPRA Case

The Supreme Court recently granted review in ACLU v. County Prosecutors Assn of NJ, to determine whether this organization of county prosecutors is a public agency that is subject to OPRA.

The Appellate Division held that CPANJ is not subject to OPRA. As explained in this post, the court determined that it is a private entity, formed by prosecutors, not political subdivisions, and lacking governmental authority.

Third Circuit Upholds A Custodian’s Special Service Charge

The Third Circuit’s recent non-precedential opinion in Doe v. Rutgers is worth noting simply because it’s so rare for a federal court to deal with OPRA issues.

The case began with Doe filing a complaint in state court concerning Rutgers’ response to his OPRA request. Doe complained that Rutgers denied access to some records, and he also challenged Rutgers’ assessment of a special service charge of $7020 with regard to other records requested.

Rutgers removed the case to federal court. The Third Circuit held that the federal court properly had jurisdiction, because although Doe filed his complaint under OPRA, his principal claim was that the special service charge violated a federal law, FERPA.

The court affirmed the dismissal of the complaint on various grounds. One claim was dismissed for failure to meet OPRA’s 45-day statute of limitations. With regard to the FERPA claim, the court determined that this statute was not violated because the records sought were not educational records within the meaning of FERPA.

The court also addressed whether the special service charge imposed by Rutgers was proper under OPRA. It upheld the charge as reasonable and permitted by OPRA. The court noted there were 4608 pages of responsive records, and “each page had to be reviewed and redacted by a Rutgers staff member to prevent disclosure of other students’ confidential information.”

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

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.


A Recent Appellate Division Case Is An Example Of Unnecessary OPRA Litigation

The Appellate Division’s recent opinion in Owoh v. Boro of East Newark involved the unfortunate situation of a requestor pursuing (and losing) an entirely unnecessary appeal.

The case involved requests to three different municipal police departments for electronic information concerning complaints and summonses. The GRC ruled that the departments properly denied these requests, applying a published Appellate Division opinion, Simmons v. Mercado, which held that police departments are not the custodians of the records in question.

However, at that time the Supreme Court was reviewing whether this Appellate Division decision was correct. During the pendency of the GRC case, the Supreme Court had granted a petition for certification in Simmons. The GRC could have temporarily suspended its review of the Owoh appeals, pending issuance of the Court’s opinion in Simmons, which would have been dispositive of the GRC case. Instead, for reasons not explained in the Appellate Division opinion, the GRC simply decided the case without waiting for the Supreme Court’s resolution of Simmons.

The Supreme Court issued its Simmons opinion less than a month later. It reversed the Appellate Division and held that police departments must disclose complaint-summonses records.

The effect of this opinion, of course, was that the police departments would have to grant the OPRA requests made in Owoh. The requestor could have obtained the records expeditiously simply by submitting new OPRA requests to the police departments, relying on the Supreme Court’s opinion. But it did not do so; instead, it appealed the GRC decision, arguing that the Supreme Court’s opinion required reversal of the agency’s ruling. The Appellate Division rejected this argument, concluding that the GRC decision was correct at the time it was issued, and there was no basis to apply the Supreme Court’s subsequent opinion to the GRC case retroactively.

As can be seen, this appellate litigation was unnecessary. The GRC could have precluded it by waiting for the Supreme Court to resolve the issue, and the requestor could have avoided it by submitting a new OPRA request.

This is a prime example of a problem I’ve previously discussed– that public bodies often must face pointless OPRA litigation.