Category Archives: Privacy

Supreme Court To Review Scope Of OPRA’s Personnel Exemption

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The Supreme Court recently announced it will review an OPRA case with major implications for the privacy of public employees’ personnel records. Libertarians for Transparent Govt. v. NJ State Police.

The Court’s website states the issue in the case is whether OPRA’s personnel exemption “require[s] disclosure of the name of a state trooper listed in the Office of Professional Standard’s annual report to the Legislature as having been terminated for misconduct?”

The Appellate Division upheld the denial of this request based on OPRA’s exemption that prohibits public disclosure of personnel information. Its straightforward rationale was that revealing the trooper’s name would disclose the precise information made confidential by OPRA’s personnel exemption–the fact that the employee was disciplined.

It’s not clear why the Supreme Court would want to review this unambiguous OPRA provision. It’s possible the Court wants to consider creating a new exception that would grant the public access to disciplinary information about law enforcement officers. Or, perhaps it recognizes that there’s a need for a precedential opinion upholding personnel privacy; as I’ve discussed, OPRA requestors often demand disclosure of personnel information, despite the clear legislative statement that such information is confidential.

Pet Owners’ Home Addresses Should Be Held Exempt Under OPRA

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Records custodians frequently confront the troublesome question of whether individuals’ home addresses must be disclosed under OPRA. For municipalities, this question seems to come up most often in requests for the names and addresses of those who have dog or cat licenses. Although OPRA’s protection of the reasonable expectation of privacy should usually preclude disclosure of this information, some trial court judges have ordered the release of pet owners’ names and addresses.

This article indicates that a judge recently rejected Jersey City’s argument that OPRA’s privacy provision bars disclosure of home addresses listed on dog licenses, and issued similar rulings in cases involving Secaucus and Kearny. According to the article, the requestor wants the information so that he can try to sell invisible fences to dog owners.

In this situation, where a requestor wants home addresses simply to solicit business, I think that OPRA’s privacy exemption prohibits release of this information.

There’s no question that home addresses in the possession of a public body are subject to individuals’ reasonable expectation of privacy. The Supreme Court has held that where this privacy expectation exists, OPRA requires that the privacy interest be balanced against the extent of the public need for disclosure of the information in question. In this situation, where the requestor’s only interest in disclosure is for his own commercial benefit, there is no public interest served in releasing the home addresses. As a result, the balancing test clearly favors confidentiality.

Hopefully, the Appellate Division will eventually correct the mistaken idea that under OPRA, a requestor’s commercial need for home addresses overrides the privacy interests of pet owners.

Appellate Division Again Rejects Attempt To Compel Disclosure of Personnel Records

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The Appellate Division recently upheld the denial of an OPRA request for the name of a State Trooper who had been discharged for misconduct. Libertarians for Transparent Govt v. NJ State Police.

This unpublished opinion applied settled law here; there’s simply no question that OPRA prohibits public disclosure of this confidential personnel information. What’s notable about this case is that it provides another example of an ongoing problem I’ve noted previously: some requestors seem to think that OPRA overrides legitimate personal privacy interests.

The requestor here, the Libertarians for Transparent Government organization, seems dedicated to getting a court to declare that OPRA’s personnel exemption is void, at least with regard to law enforcement officers. It argued in this case that OPRA’s exemption for disciplinary information should not apply to law enforcement. And the Appellate Division rejected this group’s similar effort to disregard personnel privacy in another OPRA case last year, involving a prosecutor’s office employee.

New York Times Editorial Board Makes The Case For Why Home Addresses Should Be Exempt

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All who deal with OPRA routinely face the difficult question of whether home addresses in government records are confidential. Although the courts have recognized that there’s a privacy interest in a home address, they have sometimes held that this personal information is not exempt under OPRA.

This recent opinion piece by the the New York Times editorial board, “Home Addresses are Up for Sale. Time to Take Back Your Privacy,” makes a compelling argument for why people have a strong interest in maintaining the privacy of their home addresses. The key point is that the easy accessibility of home addresses online is dangerous, as this information can be “weaponized” by “trolls…, stalkers, domestic abusers and criminals.”

For this reason, as the Times notes, sites like Facebook and Twitter prohibit the posting of a person’s address. I think New Jersey courts should similarly enforce OPRA’s privacy exemption, and prevent OPRA requestors from accessing individuals’ home addresses.

Supreme Court’s New OPRA Opinion Protects Privacy Interests Concerning MVRs

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The Supreme Court’s recent opinion in Paff v. Ocean County Prosecutor’s Office is an important victory for privacy rights, even though the Court rejected the specific claim made in the case, that the arrested driver’s privacy would be violated by release of the MVRs of her arrest.

How can an opinion rejecting a privacy claim be a win for privacy interests? Because the Court expressly stated that as a general matter, people have a reasonable expectation of privacy in MVRs. The Court made clear that in all cases involving the potential release of such a video, the privacy interests of the individuals shown must be considered.

With this language, the Court corrected the problematic Appellate Division opinion in the Paff case. The appellate court had held that people have no privacy interest whatsoever with regard to MVRs, stating: “Drivers and passengers in vehicles operating on public roadways do not have a reasonable expectation of privacy in an MVR recording.” Fortunately, the Supreme Court did not leave in place this erroneous conclusion, and instead issued an opinion that appropriately protects the privacy rights of people shown in police videos.

The driver in the Paff case failed to satisfy her specific claim of privacy because she presented no explanation for her position. But the key point is that the Court recognized that those shown in MVRs can make legitimate claims that their privacy may be harmed by disclosure of the video.

Supreme Court: Police MVRs Pertaining To Criminal Investigations Are Exempt Under OPRA

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In Paff v. Ocean County Prosecutor’s Office, issued today, the Supreme Court held that OPRA’s criminal investigatory record exemption applies to police dash cam recordings (MVRs) when the MVR is made pursuant to an order of the local police chief. The effect of this ruling is that the public cannot obtain, under OPRA, any MVR connected with a criminal investigation.

The issue in this case was whether a police chief’s order requiring his department’s officers to make MVRs in certain situations means the MVR is required by law to be made. If a record is required by law to be made, it does not satisfy the criminal investigatory record exemption. The Court ruled that an order issued by a police chief does not have the force of law, and therefore the exemption applied.

This opinion, together with the Court’s 2017 Lyndhurst opinion, means that all police MVRs pertaining to a criminal investigation are exempt under OPRA. In Lyndhurst, the Court held the MVR to be exempt because there was no requirement, either by the local police department or in Attorney General directives, that the MVR be made. In Paff, the Court made clear that MVRs are exempt even if a police department does have a requirement that MVRs be made.

An MVR may still be accessible under the common law, depending on the circumstances of the particular case. The Court remanded the Paff case for a determination of whether the MVRs should be disclosed under the common law.

The Court also held that OPRA’s privacy exemption did not preclude disclosure of the MVRs. The driver had objected to release on privacy grounds, but identified no specific privacy concerns. The Court indicated that there may be cases where a person’s reasonable expectation of privacy will warrant withholding or redacting a police video, but a generic privacy-based objection will not be sufficient.

The Extent of OPRA’s Privacy Exemption Is Not Clear, Despite Recent Supreme Court Opinions

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Since OPRA’s enactment, public bodies have struggled with requests that affect privacy interests. When presented with such a request, custodians must determine if there’s a reasonable expectation of privacy, and then apply a balancing test, weighing the strength of the privacy interest against the need for public disclosure of the information in question. The case law does not provide definitive guidance on handling these issues, because courts have reached differing conclusions on what information is entitled to privacy, depending on the facts of the particular case.

The two opinions issued by the Supreme Court over the past year on privacy under OPRA illustrate this problem. Last summer, in Matter of NJ State Firemen’s Assn Obligation to Provide Relief Applications  it upheld the confidentiality of a firefighter’s financial relief award, emphasizing the strong privacy interests that individuals have in their personal financial information.

In May 2018, the Court ruled that bidders at a public agency’s auction of forfeited property have no reasonable expectation of privacy in their names and home addresses, and therefore this information must be disclosed, without even applying the balancing test. Brennan v. Bergen County Prosecutor’s Office. The Court concluded that people bidding at an agency’s public auction could not reasonably expect their names and addresses to be private.

These cases, while important, have little applicability to OPRA requests that don’t involve bidders’ information or an individual’s financial status. Perhaps the Supreme Court’s upcoming opinion in Paff v. Ocean County Prosecutor, which concerns the privacy interests of those shown in police videos, will provide broader guidance on the contours of OPRA’s privacy provision.

Supreme Court Holds That OPRA Requires Disclosure of Names And Addresses Of Bidders At A Public Auction

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The Supreme Court ruled today that bidders at a public agency’s auction of forfeited property have no reasonable expectation of privacy in their names and home addresses, and therefore this information must be disclosed under OPRA. Brennan v. Bergen County Prosecutor’s Office.

The Appellate Division had determined that the balancing test applicable to OPRA privacy claims weighed in favor of privacy here, but the Supreme Court stated that the balancing test did not apply in this case. The Court said the balancing analysis is to be conducted only where there is a “colorable claim” that access to the information would invade an “objectively reasonable expectation of privacy.”

The bidders here had no such colorable argument, according to the Court; it concluded that people bidding at an agency’s public auction–“a quintessential public event”–could not reasonably expect their names and addresses to be private. As a result, there was no basis to withhold this information under OPRA’s privacy exemption.

Unfortunately, the Court did not resolve the question that has caused difficulty for custodians since OPRA’s enactment–are home addresses exempt from disclosure under OPRA’s privacy protection? The Brennan opinion deals only with bidders’ information, and offers no guidance on how to handle the many other situations where an individual’s address is shown on correspondence or some other document held by a government entity.

Appellate Division Issues Useful Opinion on Security Exemption and Other OPRA Issues

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The Appellate Division issued a lengthy opinion today concerning various OPRA issues raised by a disappointed bidder for a State contract. Parsons Infrastructure & Environ. Group v. State. Although the opinion is not published, it contains helpful guidance on OPRA’s exemptions for security, trade secrets and privacy, as well as on how to calculate an attorney fee award for an OPRA litigant who is only partially successful.

The most important aspect of the opinion is that it’s the first appellate case to discuss the security exemption after the Supreme Court’s ruling on this exemption in its 2016 Gilleran opinion. The Appellate Division held that Gilleran, which denied access to a building security system, applies equally to other security concerns–in this case, the risk of compromising the State’s computer hardware, software and other information technology systems. The court upheld the denial of the OPRA request on this basis.

The court also affirmed the denial of access to portions of other bids as trade secrets, noting the “fundamental unfairness” of allowing the requestor to duplicate another bidder’s system.

In addition, the Appellate Division rejected the plaintiff’s argument that it should be granted access to this security and trade secret information under the common law right to know.

The court further determined that there was no basis, under OPRA’s protection of privacy, to withhold the names of the bidder’s employees who would be working on the awarded contract. Significantly, the court agreed with the trial judge’s conclusion that disclosure of the names was a relatively trivial aspect of the OPRA lawsuit, and warranted an attorney fee award to the plaintiff of only $3500 for achieving this minimal amount of success in the litigation.

Appellate Division Rejects Another OPRA Requestor Assault On Government Employees’ Personal Privacy

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Some requestors attempt to use OPRA to evade basic notions of privacy and gain access to personal information held by the government. This post from early 2017 discusses how public bodies frequently must defend OPRA litigation seeking disclosure of clearly private information. A recent Appellate Division case presents yet another example of this.

In Wolosky v. Boro of Washington, the requestor sought the municipal clerk’s 2015 payroll record. The Boro provided this document, redacting the deductions for pension contributions, pension loan payments and health insurance payments. The Appellate Division upheld this decision, because the redacted material is exempt personnel information.

The requestor also argued that the employee’s privacy interest in the withheld information should not block disclosure. The Appellate Division agreed with the trial judge’s rejection of this claim. The trial judge said that any public interest in disclosure of how much money the employee contributes for her health insurance and pension is “heavily outweighed” by her expectation of privacy in this information.