Category Archives: Privacy

Appellate Division: Police Body Cam Video Revealing Criminal Allegations against an Individual who was not Charged With A Crime Is Not Disclosable Under OPRA and the Common Law

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The Appellate Division, in a recent published opinion, addressed an issue of first impression: whether the exemptions from disclosure of a police officer’s body worn camera (BWC) footage, which are set forth in the statute governing such cameras, abrogate other disclosure exemptions found in OPRA. The court determined that although the BWC statute provides for withholding BWC videos under certain circumstances, OPRA’s exemptions also continue to apply to such videos.

Specifically, the court held that the custodian had properly withheld disclosure of a BWC video under OPRA’s exemption for confidentiality recognized by case law–here, the confidentiality accorded to law enforcement records concerning a person who has not been arrested or charged with a crime. Fuster v. Tp. of Chatham.

Fuster went to the police with allegations that a relative had engaged in criminal sexual misconduct. Fuster was interviewed about his allegations at the police station, and the interview was recorded by an officer using a BWC. The police and other agencies investigated further and eventually decided not to file charges against the relative.

Fuster subsequently filed with the police department an OPRA and common law request for the BWC video. It was not disputed that the video fell under OPRA’s exemption for the recognition by case law of the need for maintaining the confidentiality of investigative records regarding a person who has not been arrested or charged. Instead, the requestor argued that the OPRA exemption could not be applied, on the ground that the Legislature abrogated this exemption in the BWC statute, enacted in 2021.

The requestor’s claim rested on the fact that the BWC statute provides for a few specific situations where a BWC video may be withheld from public disclosure (none of which applied to the video in this case). Based on this, the requestor reasoned that the Legislature intended to rescind all other OPRA exemptions with regard to BWC videos.

The court rejected this argument; it concluded that the legislative purpose of the BWC statute was not to override OPRA, but rather to add some exemptions to OPRA’s existing exemptions. The court saw no basis for concluding that the BWC statute meant to abolish OPRA’s requirement that a record that would disclose the identity of a person who was never arrested or charged with a crime must be kept confidential.

The court also held that under the common law, the requestor’s interest in disclosure of the video did not outweigh the strong privacy and investigatory interests that support confidentiality of the record in question 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.

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

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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.

A Pending Appellate Division Case Presents Two Important OPRA Issues

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Several municipalities are in litigation with the organization Rise Against Hate over requests for residents’ email addresses. One of these cases, involving Cherry Hill, is pending in the Appellate Division. Cherry Hill appealed the trial court’s ruling that OPRA’s privacy section does not protect email addresses from disclosure.

There is no precedential case law on whether email addresses must be disclosed under OPRA. I think there’s a strong argument that people have a reasonable expectation of privacy in their email addresses, and therefore this information should typically not be obtainable through an OPRA request. However, I’m not confident the court will agree with this position, in view of the extremely limited effect the Supreme Court and the Appellate Division have given to OPRA’s privacy provision in recent cases.

The Cherry Hill appeal presents another important issue, which I’ve never seen raised before: whether a requestor is permitted to refile its OPRA request, after the custodian denied the request and the requestor did not file a court challenge to the denial within the 45-day statute of limitations. The trial judge concluded that a requestor may submit the same request again, despite the failure to meet the statute of limitations, on the ground that OPRA does not prohibit requestors from refiling their requests.

This determination is plainly incorrect. It misses the point that the Supreme Court expressly held that OPRA has a 45-day statute of limitations for requestors who want to challenge a denial in the Law Division. Mason v. City of Hoboken. The trial court’s decision makes the Supreme Court’s decision meaningless, by allowing requestors who fail to meet the complaint filing deadline to simply file the same request again. The result is that there is no statute of limitations–precisely the opposite of what the Supreme Court mandated.

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

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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.

2020 Case Law Review–A Year of Major OPRA Court Cases

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Despite the pandemic, the courts issued a surprisingly large number of significant OPRA opinions during 2020. Here is a quick review of these rulings.

There were two cases involving the critical question of public access to police internal affairs records. The Supreme Court ruled that these records are not accessible under OPRA. FOP v. City of Newark. However, in the summer of 2020 the Attorney General created an exception to this rule, adopting a policy that requires law enforcement agencies to disclose the identities of disciplined officers. See this post for a summary of the precedential Appellate Division opinion (now under review by the Supreme Court) upholding the policy’s validity.

The Supreme Court also granted review of two other 2020 Appellate Division that dealt with important OPRA issues: Bozzi v. Roselle Park and Simmons v. Mercado. In Bozzi, the court determined that OPRA’s privacy provision does not protect against the disclosure of home addresses that people have provided to the government. In Simmons, the court said, in a matter of first impression, that when an agency has access to another agency’s database, it is not the custodian of that system, and therefore cannot be required to answer OPRA requests for information contained in the database.

And there were three more precedential Appellate Division OPRA opinions:

–IMO Application for Med. Marijuana ATC for Pangaea, etc. –a public body may withhold disclosure of the names of the individuals who reviewed applications that were submitted to the public body in a competitive process.

–Libertarians for Transparent Govt. v. Cumberland County–a settlement agreement between a public body and its employee, which resolves an internal disciplinary action against that employee, is exempt from disclosure as a personnel record.

–Digital First Media v. Ewing Tp.–a Use of Force Report involving a juvenile must be disclosed under OPRA, with redactions to protect the juvenile’s identity.

Supreme Court to Review Whether OPRA Requires Disclosure of Home Addresses

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The Supreme Court recently granted review of a case to decide a longstanding, unsettled OPRA issue: whether OPRA’s privacy provision protects against the disclosure of the home addresses of individuals who provide this information to the government when applying for a pet license. Bozzi v. Jersey City.

In Bozzi v Jersey City, the Appellate Division held, relying on its precedential opinion in Bozzi v. Roselle Park, that OPRA’s privacy exemption does not ever apply in this situation, because people have no reasonable expectation of privacy in their name and address information when they apply to the municipality for a dog license. As I noted in my post about this opinion, the court’s ruling doesn’t just affect OPRA requests for pet license records; the Appellate Division interpreted OPRA’s privacy provision to mean that public bodies may not deny the disclosure of names and home addresses that are in any government record.

Accordingly, this case requires the Supreme Court to determine the meaning and scope of OPRA’s privacy requirement, and as a result, the Court’s opinion will have a significant impact on a wide range of OPRA requests.

Attorney General Requires The Public Disclosure of Identities of Police Officers Who Have Disciplinary Infractions

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The Attorney General has announced an important police reform policy that has a major impact on New Jersey public records law. Attorney General Law Enforcement Directive 2020-5 requires, for the first time in New Jersey, that the names of police officers who have committed serious disciplinary violations must be released to the public.

The Directive states that police departments must publicly disclose the identity of an officer who has been the subject of a disciplinary sanction involving termination of employment, reduction in rank or grade, and/or a suspension greater than five days. The Directive takes effect at the end of August, and requires law enforcement agencies to publish reports listing recently-disciplined officers by the end of 2020. The Directive also notes that agencies have the discretion to release historical information about prior disciplinary violations by police officers; the Department of Law and Public Safety will do this, with regard to its law enforcement officers, by July 15.

The Attorney General’s mandate is obviously a crucial step in trying to accomplish much-needed police reform, consistent with recent national efforts to increase transparency regarding police misconduct. It also represents a momentous change in New Jersey’s public records law. When OPRA was enacted in 2001, it codified and continued what had been the law for many decades: public employee personnel information, including an employee’s disciplinary record, may not be disclosed to the public.

I think it’s inevitable that affected officers will file litigation over the Directive’s legality. It will be interesting to see if the Attorney General’s reasonable decision to require greater transparency with regard to law enforcement officers’ disciplinary information will withstand a legal challenge.

A Major OPRA Ruling: Home Addresses Must Be Disclosed

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Since OPRA’s enactment, custodians have struggled with the unsettled question of whether a person’s home address is confidential, under the exemption for the reasonable expectation of privacy. This issue comes up in many OPRA requests; one that frequently recurs is a request for the names and addresses of people who submitted pet license applications to municipalities. The Appellate Division has now issued a definitive, precedential opinion on this issue, holding that the home addresses on these licensing records must be disclosed. Bozzi v. Roselle Park.

The requestor in this case, an installer of invisible dog fences, requested the names and home addresses of municipal residents from their dog licenses. Previous cases addressing this type of OPRA request have differed on whether the individual’s privacy interest in this information outweighed the need for its disclosure. However, in Bozzi the Appellate Division held that OPRA’s privacy exemption does not ever apply in this situation, because people have no reasonable expectation of privacy in their name and address information when they apply for a dog license.

The court’s holding is significant, in that it resolves the longstanding question of whether municipalities must grant access to addresses found in pet license records. But the opinion is of even greater importance because it affects all OPRA requests pertaining to home addresses. The court went beyond the specific issue of addresses in dog license records, and stated, for the first time in a precedential opinion, that the Legislature, in OPRA, did not intend to block disclosure of names and home addresses in any government record.

Although this portion of the opinion may be dicta, the Appellate Division’s direction is unambiguous: OPRA requests for records that disclose a person’s name and address should be granted.

Appellate Division Rejects OPRA Privacy Exemption Claim

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A recent Appellate Division opinion in an OPRA case surprisingly rejected an appropriate effort by a public body to protect individuals’ privacy interests. Frega v. Boro of Saddle River.

The Borough of Saddle River approved a “deer cull” for the 2018-19 hunting season. The requestor, who was opposed to the deer cull, submitted an OPRA request for the names of the hunters who would be participating, as well as the addresses of properties on which the hunting was authorized.

The Boro denied the request under OPRA’s privacy exemption, due to threats that had been made against supporters of the deer cull. The record showed that people opposed to the cull had made various threatening statements toward Boro officials for their decision to allow it; for example, one Facebook post said, “They are sick and disgusting people . . . Now is the time to stop . . . . Everyone would like to beat the hell out of the entire bunch of them . . . they will get it back in spades. . . . Watch . . . . people are very upset.”

The Appellate Division upheld the trial judge’s decision rejecting the privacy argument. The court determined that individuals participating in the deer hunt had no colorable claim of privacy. It concluded that this case presented the same situation as in Brennan v. Bergen Prosecutor, where the Supreme Court said that a public auction, held by a public body, is a “quintessential public event,” and therefore bidders at such an auction have no reasonable expectation of privacy under OPRA. Unfortunately, the Frega court did not explain how hunting in a deer cull that the government has approved is the same as bidding on property at a government-run auction.

The Appellate Division also concluded that the requestor’s interest in obtaining the names of participants in the deer cull outweighed the affected individuals’ privacy interests. The court determined that they had no real privacy interest, because the risk of harm to these individuals was speculative.

The idea that the potential harm here was too speculative to warrant protection under OPRA strikes me as untenable, in view of the many threats of violence that were in the record. The court downplayed these menacing comments as simply “hyperbolic expressions of animosity toward the practice of hunting.” But that’s exactly why there was a genuine risk of harm from disclosure of hunters’ identities: it’s reasonable to assume that this extreme anger at the practice of hunting will be directed at the individuals who actually engage in the hunting.

Moreover, there appears to be no legitimate reason for the requestor to obtain the names of hunters. The opinion says only that the requestor needs this information to inform herself about the efficacy and risks of the deer hunt, without explaining how having participants’ names serves this purpose. In my view, the privacy balancing test clearly favors withholding the hunters’ names.

The Appellate Division’s opinion is not precedential. However, it’s another example of the problems faced by public bodies in attempting to comply with OPRA’s mandate that they protect citizens’ legitimate privacy interests.