Category Archives: Supreme Court cases

Supreme Court: The Portion of a Personnel Record that Shows the Reason for an Employee’s Separation from Employment Must Be Disclosed

The Supreme Court recently reaffirmed the requirement of OPRA that certain information found in a personnel record, including the reason for an employee’s separation from public service, is not confidential. As a result, the Court ordered disclosure of the portion of an exempt personnel record, an internal agency settlement agreement, that showed the reason for the separation of a county employee. Libertarians for Transparent Govt v. Cumberland County.

The Court’s opinion breaks no new ground, as OPRA itself, as well as prior Supreme Court precedent, is clear that certain personnel information is public; specifically, “an individual’s name, title,
position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received….” Because part of the settlement agreement in question in Libertarians showed the reason for the employee’s separation, the Court determined that the County erred in withholding the entire document, and ordered it to release a redacted version that would disclose the separation information.

Crucially, the Court rejected the main argument advanced by the requestor–that a settlement resolving an internal disciplinary action is not an exempt personnel record. In other words, the requestor asked the Court to hold that all such settlements are completely public. This result would be contrary to long settled law, and would cast doubt on the confidential status of all other personnel records.

The Court refused to go down this path. It unambiguously stated that all internal settlement agreements are personnel records that are not disclosable. Only the portion containing the separation reason must be disclosed.

Major OPRA Case Law Expected in 2022

This year will see at least two Supreme Court opinions on crucial public records issues.

Libertarians for Transparent Govt v. Cumberland County involves the question of whether a settlement agreement between a public body and its employee, which resolves an internal disciplinary action against that employee, is an exempt personnel record. As I’ve previously discussed, this has always been considered to be a confidential personnel record. Will the Supreme Court depart from this longstanding rule?

In the other pending Supreme Court case, Rivera v. Union County Prosecutor, the Court will determine whether police department internal affairs reports at issue, concerning alleged misconduct by a city’s police director, must be disclosed under OPRA and the common law. Since the Supreme Court held in 2020 that police internal affairs records are confidential under OPRA, it seems unlikely it will reverse that position here. I think it’s more likely that this case will focus on whether the records in question should be made public under the common law.

In addition to these Supreme Court opinions, public bodies should expect disputes and litigation related to interpreting some of the cases decided in 2021. I anticipate more claims seeking attorney fee awards for litigating common law record requests, in view of last year’s precedential opinion of the Appellate Division permitting such awards in common law cases. And the extent of OPRA’s privacy protection will continue to be a hot issue; this is currently the subject of a number of pending cases, specifically involving requests for individuals’ email addresses.

2021 OPRA Case Law Review: A Year of Landmark Opinions

In every year since OPRA’s enactment in 2002, the Supreme Court and Appellate Division have issued opinions with far-reaching impact on OPRA law and procedure. 2021 was no different. Some of the cases decided this year constituted landmark developments in New Jersey public records law.

In Bozzi v. Jersey City, the Supreme Court resolved an issue that municipal custodians have struggled with since OPRA’s enactment, in holding that the names and addresses of those who have obtained dog licenses must be disclosed. The Court’s opinion also addressed, for the first time, the larger question of whether a person’s home address is protected by OPRA’s privacy requirement. The Court effectively concluded that OPRA does not shield home addresses from public disclosure.

In another landmark case, the Supreme Court upheld the Attorney General’s requirement that the names of police officers who have committed serious disciplinary violations must be made public.

The third Supreme Court OPRA opinion, issued in 2021, Banfi v. Mercado, said a police department is required to respond to an OPRA request for electronic information concerning complaints and summonses, where police officers entered such arrest-related information into the Judiciary’s Electronic Complaint Disposition Record (eCDR) system.

The Appellate Division issued a significant opinion in Gannett v. Neptune Twp. The court held that a police officer’s internal affairs file, although exempt from disclosure under OPRA, is subject to disclosure under the common law. This opinion also contained an even more important ruling concerning common law record requests: the court held, for the first time in a published Appellate Division opinion, that successful common law requestors are eligible to be awarded attorney fees.

The other major Appellate Division case was Doe v. Rutgers. In addition to being one of the few cases to discuss OPRA’s provisions relating to higher education student records, the opinion also discusses a situation that many custodians often have confronted–an OPRA request asking for all records related to the agency’s response to that request. The court stated that this was an invalid request, because the records sought did not exist at the time the request was made. And more crucially, the court further indicated that these records would not be disclosable, because they fall within the deliberative process exemption.

Wag the Dog: Supreme Court’s Bozzi Opinion Makes Most Home Addresses Public Under OPRA

In Bozzi v. Jersey City, the Supreme Court recently resolved a longstanding issue in holding that OPRA requires disclosure of the names and home addresses of individuals from their dog license records. But the impact of the Court’s opinion is not limited to dog owners; the Court effectively ruled that home addresses are not protected from disclosure by OPRA’s privacy requirement.

The majority opinion in Bozzi held that those who obtain dog licenses don’t have even a “colorable claim” to a reasonable expectation of privacy in their names and addresses. This conclusion rests entirely on the dubious assertion that “owning a dog is, inherently, a public endeavor” (emphasis mine). Even assuming this proposition is correct, the flaw with this analysis of the privacy interest, as identified by Justice Pierre-Louis’ dissent, is that “dog owners appearing in public with their dogs do not do so while simultaneously advertising their full names and addresses.” For this reason, as the dissent pointed out, dog owners likely do not envision that the government will turn over this personal information to the public pursuant to OPRA requests.

Unfortunately, the majority opinion did not follow this sensible approach, and instead adopted an analysis that provides virtually no privacy protection for a person’s home address under OPRA. After Bozzi, where there’s no specific statute providing confidentiality to an address in a particular record, OPRA requires disclosure of the person’s address. The only circumstance where a home address would possibly be confidential under OPRA’s privacy section is when the OPRA request for a home address is linked with disclosure of other clearly private information–such as receipt of financial assistance benefits (Matter of Firemen’s etc) or a person’s social security number (Burnett v. County of Bergen).

Apart from such exceptional situations, there appears to be no basis for withholding a home address under OPRA’s privacy provision.

Supreme Court: OPRA Requires Disclosure of Names and Addresses from Dog License Records

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.

Another Supreme Court Opinion on OPRA and Law Enforcement Records: Police Departments Must Respond to Requests for Complaint-Summonses Information

Only 10 days after issuing an opinion on OPRA and police disciplinary information, on June 17 the Supreme Court issued another ruling on law enforcement records and OPRA. The Court held that a police department is required to respond to an OPRA request for electronic information concerning complaints and summonses. Simmons v. Mercado.

The case involved an OPRA request to the Millville Police Department for DWI, drug possession, and drug paraphernalia complaints and summonses. Police departments do not maintain these records; instead, police officers enter arrest-related information into the Judiciary’s Electronic Complaint Disposition Record (eCDR) system, which generates complaints and summonses and is the repository of these records. The Supreme Court opinion notes that police departments have access to the Judiciary’s eCDR system.

The Supreme Court rejected the argument that requests for these records may only be made to the Judiciary, as the custodian of the eCDR system. The Court said that the records were “made” by the department’s police officers when they inputted arrest information, and therefore they are “government records” of the department under OPRA that must be disclosed by the department.

Of course, the police department (or any other agency) cannot disclose a record without having the ability to retrieve that record from somewhere. In this case, the police department has the ability to retrieve the information through its access to the Judiciary’s eCDR system; presumably for this reason, the Court considered both the police department and the Judiciary to be “concurrent” custodians of the electronic information in question.

Supreme Court Upholds Validity of Attorney General’s Directive Mandating Disclosure of Names of Disciplined Officers

Today the Supreme Court issued its opinion upholding the Attorney General’s June 2020 Law Enforcement Directive that requires the public disclosure of the names of police officers who have committed serious disciplinary violations. The court determined that the Attorney General reasonably exercised his power to enact this new requirement under his statutory law enforcement authority. In re AG Law Enforcement Directives 2020-5 and 2020-6.

The Court dealt with the threshold issue–the apparent conflict between the Directive and OPRA’s personnel records exemption–in an elegant and straightforward fashion. Chief Justice Rabner, writing for the unanimous Court, found that there is no conflict: OPRA expressly states that the personnel exemption does not apply to personnel records “required to be disclosed by another law,” and, the Court said, the Attorney General’s Directive is such a law.

The name of any law enforcement officer subjected to serious discipline after the date of promulgation of the Directive now must be publicly disclosed.

However, the Attorney General had also ordered the release of the identities of State troopers and other State law enforcement officers who settled serious disciplinary matters in the 20 years before the Directive was enacted. The Court held that these names cannot currently be released. It ordered that there first must be additional litigation, to be held before a judge to be designated, concerning whether officers who settled their disciplinary cases prior to the Directive have valid promissory estoppel claims precluding the public release of their identities.

Police department custodians should note that the Court said similar court proceedings will likely be needed if their departments, which are not covered by the Attorney General’s requirement to disclose the names of officers who were disciplined in the past, also decide to release the names of officers who fall within this category.

Supreme Court Grants Review of Case on Access to Police Internal Affairs Records

The Supreme Court recently announced that it will review the Appellate Division’s decision in Rivera v. Union County Prosecutor. According to the Court’s website, the question is, “are the police department internal affairs reports at issue subject to disclosure under the Open Public Records Act and the common law right of access?”

I’m not sure why the Court took this case, as it has already held, in a 2020 opinion concerning the powers of civilian review boards, that police internal affairs records are strictly confidential. FOP v. City of Newark. Based on this ruling, as well as many Appellate Division opinions, it’s settled that these records are not accessible under OPRA.

It’s possible that the key reason for the grant of certification in Rivera is for the Court to examine the issue of common law requests for internal affairs records. As I noted with regard to the Appellate Division’s opinion in Rivera, I was somewhat surprised the court denied the common law claim, because there did seem to be an extremely strong public interest in disclosure: the case involved a high profile matter concerning alleged misconduct by a former city police director. Perhaps the Supreme Court wants to give guidance on the proper weighing of interests in common law requests for sensitive internal affairs records.

Supreme Court To Decide Another OPRA Case

The Supreme Court recently granted review of a case to determine whether a settlement agreement between a public body and its employee, which resolves an internal disciplinary action against that employee, is an exempt personnel record. Libertarians for Transparent Govt v. Cumberland County.

For many decades, it has been settled law in New Jersey that an internal disciplinary action taken by a public employer against its employee is a personnel record of that employee, and therefore cannot be disclosed. The Supreme Court would effectively abolish this rule if it were to determine that the internal resolution of such a disciplinary matter, through a settlement between the employer and employee, is not covered by OPRA’s personnel exemption.

Libertarians is the fourth OPRA matter currently pending before the Supreme Court.

Major Supreme Court OPRA Opinions Coming in 2021

There are going to be some important developments in OPRA law in 2021, as the Supreme Court is currently considering three cases involving OPRA issues.

-Bozzi v. Jersey City

The specific question in this case–whether OPRA requires disclosure of the home addresses of individuals who applied for a pet license–is significant because it’s one that frequently confronts municipalities. But the case also presents broader issues of far-reaching impact: do people have a reasonable expectation of privacy in their home address information that’s in the possession of the government? If so, does OPRA’s privacy exemption protect home addresses and similar information?

Simmons v. Mercado

This case involves an issue that has never been dealt with by the courts, but is of critical importance to many OPRA custodians: when an agency has the ability to access another agency’s database, is it required to answer OPRA requests for information contained in the database?

In re AG Law Enforcement Directive

This appeal concerns the validity of the Attorney General’s July 2020 Law Enforcement Directive that requires, for the first time, the public disclosure of the names of police officers who have committed serious disciplinary violations. The Court will need to consider the tension between this requirement and OPRA’s personnel exemption, which has always been held to preclude the release of the names of disciplined public employees.