In the wake of the Supreme Court’s Lyndhurst opinion, the AOC has issued a directive on how judges must handle lawsuits which seek release of a dashcam video of a fatal police shooting. The directive says that these are common law right to know cases which should be subject to the summary action court rule procedures that apply to OPRA cases.
This is a clear statement from the Judiciary that litigation over fatal police shooting videos should be handled as quickly as possible. Note, however, that the common law, unlike OPRA, does not have a deadline for the agency’s response to the request for disclosure. While a response to a common law request should not be unreasonably delayed, there’s no legal requirement that it be made within OPRA’s 7-business day time frame.
Public bodies often struggle with requests for records in which third parties may claim a confidentiality interest. This problem may come up when a third party asserts a proprietary or investigatory interest in a record, and it occurs most frequently where a record contains information that may affect a person’s privacy interests. These requests present the custodian with a dilemma: under OPRA, the custodian must respect the privacy or confidentiality interest of any person, but the custodian typically is not able to explain the confidentiality arguments of that person.
The courts have not definitively said what procedure the custodian should follow when confronted with this situation. The Appellate Division has suggested that the party with the confidentiality interest should be given notice of the request (see, for example, Gannett v. Middlesex County), but the court has never expressly mandated this, nor has it explained precisely how the request should be handled by the public body after this notice is provided.
Hopefully, the Supreme Court will soon provide guidance on these issues. During oral argument this past January in IMO NJ State Fireman’s Assn Obligation to Provide Relief Applications, a pending case involving OPRA’s privacy exemption, the justices spent a lot of time discussing what procedure a custodian should follow when a third party has a privacy interest in the requested record. The fact that these questions came up doesn’t guarantee that they will be answered in the Court’s opinion, but it seems likely that the Court will deal with the procedural issues in some fashion.
Custodians often struggle with OPRA requests that involve individuals’ home addresses. No court has issued a definitive, published opinion concerning OPRA’s privacy exemption and home addresses.
Fortunately, the Supreme Court is going to provide long-awaited guidance on this issue. On May 8th, the Court announced that it has granted review in Brennan v. Bergen County Prosecutor, which presents the question, according to the Court’s website, of whether OPRA and the common law compel disclosure of the names and addresses of people who successfully bid at an auction of public property.
See this post for a discussion of the Appellate Division’s opinion in the Brennan case.
The Trump Administration recently announced that it would not release to the public the logs showing the names of visitors to the White House. Its position apparently is that FOIA does not require disclosure of the logs, because all White House records are exempted from that statute.
Would a record of visitors to a government office be disclosable under OPRA? No court has ruled on this issue, but it seems to me this would not be a public record. It’s settled law that officials’ appointment calendars are exempt under OPRA. A visitor log reveals the same confidential information as an appointment calendar–the identity of those who meet with government officials.
Requestors who successfully challenge OPRA denials are entitled to attorney fees, and as a result, public bodies often have to pay large fee awards. But public bodies can fight against excessive attorney fee demands made by requestors.
An unpublished Appellate Division opinion, issued today, illustrates one way this can be done. In Stern v. Lakewood Volunteer Fire Company, the court determined that the request had been improperly denied because the fire companies were subject to OPRA. The court also upheld the trial judge’s decision to award $6300 in attorney fees, well below the requestor’s demand for $25,000.
The attorney’s hourly rate of $315 was granted, but the court said that this would be awarded for 20 hours of work, rather than the 50 hours claimed by the requestor. The court based this significant reduction on the fact that the issue in the case, whether OPRA applies to fire companies, was not novel and did not require a lot of research.
Notably, the Appellate Division also took into account the minimal level of finances of the fire companies. It said that in calculating an appropriate fee award, it is relevant to consider that fire companies are not public entities with “almost inexhaustible resources” (quoting the Supreme Court’s opinion on OPRA attorney fee awards, NJDPM v. NJ Dept. of Corrections).
On Wednesday, November 7, at 1 pm, the Supreme Court will hear argument in the Lyndhurst case, concerning OPRA’s exemption for criminal investigatory records. As I’ve noted before (see, for example, here and here), this is a seminal OPRA case, which will establish new law regarding the extent of access to a wide variety of investigatory material.
The Supreme Court held argument in another law-enforcement-related OPRA case, Gilleran, around six weeks ago. The Supreme Court will probably issue its opinions in Gilleran and Lyndhurst around the same time. This means that, perhaps by early in 2017, there could be new legal standards governing whether many different types of law enforcement records are confidential or accessible.
The Supreme Court announced that it has added a new OPRA case to its docket. The case, with the ungainly title of Matter of NJ Firemens Assn Obligation to Provide Relief Applications, involves two issues: (1) whether a public body may file a declaratory judgment action concerning whether requested records may be withheld, and (2) whether the requestor should be granted access to the records sought here, which show the name of a particular applicant for a financial relief assistance award and the amount awarded.
The Appellate Division determined that OPRA does not allow record custodians to bring declaratory actions against requestors to enforce the claimed right to withhold the requested records. The court also ruled that the requested relief application records had to be disclosed, concluding that the requestor’s interest in disclosure of the information about one specific applicant outweighed the applicant’s privacy interests.
This is the third OPRA case now pending before the Court, joining Lyndhurst (criminal investigatory records) and Gilleran (security exemptions).
The Supreme Court’s Civil Practice Committee has rejected a proposal that New Jersey’s court rules be amended to permit plaintiffs to file anonymous OPRA complaints. See p. 116 of the 2016 Committee Report.
The proposal that the court rules authorize anonymous OPRA complaints, made by an individual identified only as a non-attorney involved in several OPRA cases, was based on the fact that OPRA allows anonymous requests to be submitted. The “vast majority” of the Committee rejected the requested rule change. This decision was based on the Appellate Division’s 2015 opinion in A.A. v. Gramiccioni, where the court held that there is no reason to permit OPRA plaintiffs to prosecute litigation anonymously.
The Committee’s action puts to rest any possibility that anonymous OPRA court complaints may be filed. The GRC does accept anonymous complaints, even though, as I’ve discussed, this policy is contrary to law.
As discussed in this article, a Cape May County trial court judge recently dismissed an OPRA complaint on the ground that OPRA permits requests only by New Jersey citizens. The article notes that a Burlington County trial judge reached the opposite conclusion in another case a few weeks ago. The public body in that case has appealed, and the requestor’s attorney in the Cape May case said that her client will appeal as well.
As a result, the Appellate Division will be resolving this novel question of whether the Legislature intended to preclude those who are not New Jersey citizens from making OPRA requests. The appellate court probably won’t issue its decision until the middle of 2017. Until then, because of the conflicting trial court decisions, there’s no way to predict how another trial judge will rule if a public body denies a non-citizen’s OPRA request.
As noted here, my view is that it really doesn’t matter how the courts ultimately resolve the issue, because it is impossible to stop requestors from other states from obtaining New Jersey public records. If the Appellate Division interprets OPRA to mean that only New Jersey citizens may make requests, non-citizens will get around the prohibition by submitting anonymous requests, or by having a New Jersey citizen make OPRA requests for them.
I’ve previously pointed out that the GRC’s interpretation of the “immediate access” provision is unrealistic. The agency has said that custodians must respond to these requests “at once,” and has found custodians in violation of this section of the statute where they’ve provided the records within only 4 days of receiving the request.
A recent GRC decision continues this strict approach. In Scheeler v. Office of Attorney General (2014-236), the requestor asked for legal bills submitted by a law firm over an 8-month period. Three business days later, the custodian provided 150 pages of responsive records. The GRC held that the custodian violated OPRA because she did not immediately write to the requestor to advise that some time would be needed to review and release the records.
I don’t think this interpretation is consistent with OPRA. A requestor has to appreciate that it is impossible for a custodian to release several months’ worth of attorney bills instantly. As the GRC acknowledged, because attorney bills must be carefully reviewed for privileged information, they ordinarily cannot be disclosed quickly. In other words, a custodian simply cannot release attorney bills immediately upon receiving a request. Here, the custodian disclosed a large number of such records only 3 days after receiving the request, which is surely the type of reasonable outcome the statute intends.
There are no court cases addressing this issue, so custodians must keep in mind the GRC’s hard line approach in handling “immediate access” requests.