Category Archives: Supreme Court cases

A New Supreme Court OPRA Opinion–The County Prosecutors Association is Not Covered by OPRA or the Common Law Right to Public Records

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The Supreme Court recently issued a new opinion dealing with OPRA’s section that defines what is a public agency that’s subject to OPRA. The Court held that the County Prosecutors Association of New Jersey (CPANJ)–501(c) nonprofit made up of the 21 county prosecutors– is not a public agency under OPRA. The Court also held that CPANJ is not a public entity whose records are covered by the common law. ACLU v. CPANJ.

The Court determined that CPANJ is not (per OPRA’s definition of a covered public body) an “instrumentality” created by “political subdivisions.” The “core question” here was whether a county prosecutor is a “political subdivision.” The Court concluded (as did the Appellate Division) that a prosecutor is not a political subdivision, so CPANJ is not a public agency within the meaning of OPRA.

Significantly, the Court rejected the argument that CPANJ is covered by OPRA because it engages in governmental law enforcement functions. The Court emphasized that OPRA’s definition of a covered entity does not have a “governmental function test.” The only question, said the Court, is whether an entity falls within the language of OPRA’s definition of a public agency.

When I wrote about the Appellate Division’s decision in this case, I commented that the requestor’s effort to obtain records from CPANJ was actually unnecessary, given that it could use OPRA to seek from prosecutors’ offices, the Attorney General’s Office, or any other public agency these agencies’ communications with CPANJ. The Supreme Court alluded to this point in its opinion, noting that the “decision affirming the dismissal of the ACLU’s OPRA claim against CPANJ does not preclude the ACLU from requesting the same categories of documents from one or more public agencies subject to OPRA.”

Supreme Court to Review Whether OPRA’s Exemptions Apply to Police Body Worn Camera Videos

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The Supreme Court recently announced that it has granted review of a case that presents the novel issue of whether OPRA exemptions apply to police body worn camera recordings. Fuster v. Boro of Chatham.

My post on the Appellate Division’s opinion in this matter explains this case in more detail. In brief, the requestor argues that the Legislature abrogated the application of OPRA exemptions to body worn camera (BWC) videos when it enacted the BWC statute in 2021.

OPRA clearly precludes disclosure of the video requested here, pursuant to the exemption established in case law that maintains the confidentiality of investigative records regarding a person who has not been arrested or charged. But the requestor argues that this OPRA exemption does not apply to a BWC, because the BWC permits withholding BWC videos only for certain reasons, which do not include this OPRA exemption.

The Appellate Division didn’t buy this argument, but it remains to be seen how the Supreme Court will interpret the interplay of the two statutes. The stakes in this case are quite high: acceptance of the requestor’s position would mean that OPRA effectively no longer applies to requests for police BWC recordings.

In addition to this important issue, the case presents another question that may have a significant impact on law enforcement agencies. In granting review, the Supreme Court also said that it will consider whether the BWC video in question should be released under the common law. This will require the Court to examine whether the strong privacy and confidentiality interests that typically support not disclosing investigatory records should apply here.

Supreme Court to Review Whether OPRA Requires Disclosure of Residents’ Email Addresses

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The Supreme Court recently granted review of a consequential OPRA issue: the applicability of OPRA’s privacy provision to residents’ personal email addresses. Since OPRA’s enactment, municipalities have been frustrated by the absence of precedential case law governing requests for residents’ email addresses. The Supreme Court will now remedy this situation, in Rise Against Hate v. Cherry Hill.

Specifically, the question in the case, according to the Court’s website, is:

“Are email addresses submitted by members of the public to a public agency to sign up for electronic newsletters and notices subject to disclosure under the Open Public Records Act?”

In this case, the Appellate Division held that OPRA’s privacy section prohibited disclosure of the email addresses. As I explained here, the Appellate Division determined that people have an expectation of privacy in their email addresses, and these privacy interests outweighed the requestor’s interest in disclosure, where residents provided their email information to the municipalities for receipt of “periodic, generic newsletters and notices.”

Although this case only involves email addresses that were submitted for receipt of newsletters and notices from municipalities, presumably the Supreme Court’s analysis will also provide guidance on how to handle an OPRA request for a personal email address that a public body has received, for any other reason.

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

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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

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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.

The Supreme Court Takes a New OPRA Case

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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.

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.


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

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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.

2022 OPRA Case Law Review

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Here’s a look back at the most important OPRA opinions issued by the courts this year.

The Supreme Court issued two OPRA opinions in 2022, both in March–Libertarians for Transp. Govt. v. Cumberland County and Rivera v. Union County Prosecutor. In Libertarians, the Court held that an internal settlement agreement between a public employer and its employee is an exempt personnel record, but the portion of the agreement that contains the reason for the employee’s separation from employment must be disclosed. In Rivera, the Court reaffirmed that records of police internal affairs investigations are exempt under OPRA, but may be disclosable under the common law ability to access government records.

See also this post for additional analysis of how these two opinions have a significant impact on OPRA law and practice.

The Appellate Division also issued some major OPRA opinions, addressing issues of first impression:

–Underwood Properties v. Hackensack dealt with a common problem in OPRA matters–an attorney, in the course of representing a client, submits an OPRA request under his own name, rather than the client’s name, and then the client files a complaint over the denial of the request. The court held that the client has standing to file the OPRA litigation, despite not being identified as the requestor in the OPRA request.

Underwood is also one of the few published opinions that addresses the calculation of a requestor’s attorney fee award.

–C.E. v. Elizabeth Public Sch. Dist. held that settlements of OAL cases involving IDEA special education challenges must be disclosed under OPRA.

–ACLU v. CPANJ held that the County Prosecutors Association of New Jersey is not an agency subject to OPRA.

Supreme Court to Review Whether Attorney Fees May Be Awarded in Common Law Records Cases

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The Supreme Court will decide a longstanding, problematic issue in government records law: whether a requestor who obtains records through a common law request may be awarded attorney fees.

In a 2021 opinion, Gannett v. Tp. of Neptune, the Appellate Division held that a successful common law requestor may receive an attorney fee award. However, the court denied a fee award in this case, based on the conclusion that the request was not the catalyst for the eventual release of the records in question. See this post for a summary of the opinion.

The Supreme Court granted certification in this case last week. According to the Supreme Court’s website, the Court will consider: “In this lawsuit seeking police department internal affairs records, was plaintiff entitled to attorneys’ fees and does the catalyst theory apply to a common law right of access claim?”

No court has ever squarely held that there is a legal basis for common law requestors to receive attorney fee awards. Instead, as I’ve discussed previously (in this 2021 post), the argument that common law requestors are entitled to attorney fees is based exclusively on dicta; specifically, a brief comment made in a Supreme Court opinion in a 2008 case in which the Court was considering only an OPRA request, not a common law request. In Gannett, for the first time, the Court will be able to review the common law attorney fee question fully and resolve the uncertainty over this important issue that has existed since 2008.