Category Archives: Invalid requests

A Significant Court Ruling: A Prolific OPRA Requestor is Not Allowed to Make OPRA Requests

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Over the past several years, an organization named the African American Data and Research Institute (AADARI) has been a frequent OPRA requestor and litigant. I don’t know how many requests AARDI has made, but it often files challenges to OPRA denials in the GRC and the courts. About half of the cases decided by the GRC in recent have listed as the complainant, “Rotimi Owoh, Esq. (o/b/o African American Data & Research Institute).” And the AADARI, always represented by Mr. Owoh, has litigated a number of Appellate Division and Supreme Court OPRA cases.

However, the Appellate Division recently held that the AADARI does not have the legal capacity to make OPRA requests or to authorize an attorney to act on its behalf, either to make OPRA requests or to file litigation. AADARI v. Hitchner, et al.

This case involved various OPRA and common law requests made by Attorney Owoh on behalf of AADARI. However, the record before the Appellate Division showed that AADARI is a corporation whose sole member is Owoh’s son, O.S., who suffers from a mental illness and is mentally incompetent. The court concluded the corporation did not have the legal ability to take any of the actions involved in the OPRA matters. The corporation can only take actions through its members, but AADARI’s only member, O.S., is not able to do so because of mental incompetence; according to the court, he “does not possess the capacity to retain Owoh, request the records, or decide to file suit.”

For the same reason, the court said, the corporation lacks the legal ability to file an OPRA court action. The entity cannot satisfy the court rule that its action be supported by the required verified complaint –no one in the corporation could attest to the truth of the claims. As a result, the Appellate Division dismissed the complaints.

It’s not clear what effect this ruling will have on future OPRA litigation. The AADARI could, of course, reorganize with new members to remedy the problem discussed above. But for now, this frequent requestor is precluded from making OPRA requests or litigating over prior denials of its purported requests.

Appellate Division Issues Useful Opinion on OPRA’s Exemption for Investigations in Progress

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The Appellate Division’s recent unpublished opinion in Benigno v. Office of the State Comptroller doesn’t break any new ground, but it contains helpful reminders of the legal standards that govern some common OPRA issues.

The requestor sought records concerning an investigation by the Office of the State Comptroller (OSC) into the training provided by the requestor’s company, “Street Cop Training,” to various police departments. (It’s not relevant to the OPRA issues, but here’s an article discussing the OSC’s report alleging the company conducted problematic training sessions).

The court upheld the denial of the request on various grounds. The records were confidential under OPRA’s exemption for an “investigation in progess.” The Appellate Division discussed how the records met all the criteria for this exemption: at the time of the request, the OSC was engaged in an investigation; the requested records were created as part of this investigation; and it would be “inimical to the public interest” to reveal the OSC’s “investigative playbook” to the party being investigated.

The court also held that the request was invalid as an overbroad request for information. The request consisted of demands for “all” documents, correspondence, etc. related to the investigation. As I’ve noted before, requestors keep making this type of improper request, even though the case law has consistently said that OPRA does not allow this.

Finally, the Appellate Division rejected the requestor’s effort to obtain the records under the common law, concluding that the need for confidentiality of the investigation far outweighed any interest in disclosure.

Once Again, Appellate Division Rules That A Request Requiring Research Is Invalid

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It’s a bedrock OPRA principle, stated consistently by the courts, that a request must be for a specific record, and cannot require the custodian to conduct research to fulfill the request. For this reason, the Appellate Division recently upheld the denial of a request that sought the “real reason” for the separations of various police officers from employment. Owoh v. Maple Shade Police Department.

The request asked the police department for personnel information that’s not exempt from disclosure under OPRA–the “[n]ames, date of hire, date of separation and reason for separation and salary of
individuals who…[were separated] in the last [five] years from [the] police department.” The department provided the requested information. For the reasons for separation, it properly indicated whether the officer resigned, retired or was terminated.

The requestor objected that this did not show the “real reason” for separation, which might be due to a plea agreement or a conviction. The court rejected this argument, concluding that the department complied with OPRA by giving the requestor the reasons for the officers’ separations.

Regarding the requestor’s interest in finding the so-called “real reasons” for officers’ separations from employment, the court indicated that the custodian was not obligated to try to figure out what records might contain such information. The court emphasized that the request did not identify any specific records that have the “real reasons,” and the custodian was not required to conduct research and analyze the agency’s records to attempt to find this information.

Appellate Division Discusses the Proper Way to Handle an OPRA Request Sent to the Wrong Agency

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In Owoh v. City of Camden, the Appellate Division recently dealt with what it characterized as a “case of mistaken identity”–the requestor asked the City of Camden for records of the County of Camden. The request sought various police department records from the City, but since 2013, the City has had no police department, and the County Police Department handles all policing in the City. The court held that the request in question could only be answered by the County, the public entity that maintains the records in question.

After reaching this unremarkable conclusion, the court dealt with an issue that is of interest to all record custodians–the obligations imposed by OPRA when a request is submitted to an agency that isn’t the custodian of the record. According to the Appellate Division, this situation is governed by OPRA’s requirement that the person in receipt of the request must either “forward the request to the custodian of the record or direct the requestor to the custodian of the record.”

The court rejected requestor’s argument that the City was required to respond to its misdirected request by obtaining the records from the County. As the court pointed out, OPRA does not require this. The City here followed the plain language of the statute, by directing the requestor to the proper custodian; it notified the requestor that the County was the custodian of the records sought, and gave a County phone number to contact with reference to the request.

Appellate Division: An OPRA Request Submitted to Public Body’s Outside Attorney is Not Valid

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On June 21, the Appellate Division issued an opinion on a novel issue: whether an OPRA request may validly be submitted to the outside attorney for a public body, rather than to the custodian. The court held that such a request is invalid, because OPRA requires that requests be made to the custodian of records. S.W. v. Elizabeth Board of Ed.

The requestor in this case sought records of the Elizabeth Board of Education by sending an OPRA request to the Board’s “solicitor.” The opinion doesn’t say, but I understand this term to mean the outside attorney representing the Board, rather than an attorney who is a Board employee. The request was denied because it had not been sent to the custodian, nor to an officer, employee, or office of the school district.

The court upheld this denial as consistent with OPRA’s clear requirement that a request must be submitted to the agency’s custodian. It also rejected the claim that the Board’s attorney was covered by the statutory requirement that “an officer or employee of a public agency” who receives an OPRA request must forward the request to the custodian. Plainly, an outside attorney representing the agency is not an “officer or employee” of the agency.

The Appellate Division also addressed an issue that I discuss in my program on OPRA and the Rules of Professional Conduct, but that’s never been considered previously by a New Jersey court: whether RPC 4.2 prohibits a party that’s sued a public agency from submitting an OPRA request directly to the agency. The RPC prohibits direct communication with a client known to be represented by counsel; is submission of an OPRA request to the custodian, where the agency is represented by an attorney, covered by this rule? The court said it is not, emphasizing that the RPC actually exempts from its prohibition communications with the government, such as OPRA requests. Specifically, RPC 4.2 contains an exception for when the law authorizes such direct contact, to ensure “a citizen’s right of access to government decision makers.”

This is the first time a New Jersey court has addressed this ethics issue (although courts in other states have reached the same conclusion with regard to their public records laws and the RPCs). It’s unfortunate that the court’s opinion is not published, but it nevertheless provides helpful guidance.

Appellate Division Issues Precedential Opinion on Access to Higher Education Student Records

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The Appellate Division recently issued a published opinion concerning an area of OPRA that’s rarely been addressed by the courts–access to student records held by higher education institutions. Doe v. Rutgers.

Doe, a Rutgers student, requested many different records, including some that contained student information. Rutgers argued that it could not release any records that have such information–including even Doe’s own records. The court rejected this position, and held that Rutgers must disclose “records that do not reveal the identity of other students. This includes plaintiff’s access to his own academic, discipline, and financial records as long as identifiable references to other students are removed.”

This is the first time I’ve seen the Appellate Division address this issue. Perhaps this is because OPRA is clear with regard to access to higher education student records: the statute says such records are exempt, but only “to the extent disclosure would reveal the identity of the student.” And there’s little doubt that a student should be entitled to obtain his own records.

The opinion also dealt with an issue that was settled many years ago, yet keeps coming up: the invalidity of overbroad OPRA requests that require research by the custodian. The court determined that much of Doe’s multi-part OPRA request was deficient on this basis.

The opinion contains an additional ruling that applies beyond the higher education context. Doe’s OPRA request included a demand for all records related to Rutgers’ response to the other parts of his 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 the court further indicated that these records would not be disclosable, because they would fall within the deliberative process exemption.

The Appellate Division Reiterates A Basic Rule: A Custodian Is Not A Researcher Under OPRA

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It’s a well-settled rule that an OPRA request requiring research by the custodian is invalid, but requestors nevertheless keep filing these kind of requests. In an opinion issued today, the Appellate Division, as it has done on many occasions, upheld the denial of a request on this basis. Carter v. Dept. of Community Affairs (unpublished).

The request in this case was a textbook example of an invalid research request. The requestor sought

“copies of any and all ‘Notice of Docketing’ records issued by the New Jersey Superior Court, Appellate Division, resulting from an appeal (pursuant to N.J.S.A. 40A:9-22.91) of any final [agency] decision of the Local Finance Board [(LFB)] from August 9, 2011 through August 9, 2016.”

The Appellate Division agreed with the GRC that this is not a valid request. Because the request did not identify specific cases, it required the custodian to find out from other agencies what cases might be covered, locate these case files, and then analyze the case files to attempt to figure out if they contained relevant records. OPRA simply does not require records custodians to perform such research and analysis.

Once Again, The Appellate Division Rejects Overbroad Requests

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Requestors persist in filing overbroad OPRA requests, despite settled law that such discovery-like demands are invalid. The Appellate Division recently dealt with an egregious example of this in Port Auth. PBA v. Port Auth. of NYNJ.

According to the opinion, the litigation began in 2016, and involved a 78-page complaint concerning over 50 OPRA requests.The appeal involved 38 requests, almost all of which were obviously improper. One example illustrates the way the requests were written: it sought records of meetings participated in by a named person and any employee of the FAA, since 2009. The court rejected this request, and the many similar requests here, as invalid under OPRA.

Also of note is that even though the plaintiff prevailed on a few of its requests at the trial level, the Appellate Division held that it was entitled to only a minuscule attorney fee award. Due to the requestor’s limited success in the litigation, the court awarded $5400, far below the $46,000 sought by the requestor.

How Will New Jersey Respond To An OPRA Request From Trump Voter Fraud Commission?

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Yesterday, the State Division of Elections announced that the request for voter data from the Trump administration’s “voter integrity commission” is “under review.” The Division’s statement seems to suggest that New Jersey will only release public information to the Commission in response to an OPRA request: “[N]o information has been released nor will any future information be released that is not publicly available or does not follow the appropriate legal process for information requests.”

Presumably, the “legal process for information requests” means OPRA. But it appears that the Division would have to deny any OPRA request submitted on behalf of the Commission because the request would not be from a citizen of New Jersey. As discussed here, the GRC ruled in October 2016 that only citizens of New Jersey may make OPRA requests.

As I’ve previously discussed, there’s no precedential court opinion on the question of whether OPRA is available only to New Jersey citizens. In the absence of judicial precedent on an OPRA issue, New Jersey state agencies typically comply with GRC rulings. In this matter, the Division would be constrained to reject entirely an OPRA request from the Commission, based on the GRC’s 2016 citizenship decision.

Problems And Issues Created By The Supreme Court’s New Opinion On Electronic Records

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The Supreme Court’s opinion in Paff v. Galloway Tp. changes the obligations of records custodians and raises questions with regard to several OPRA issues that had previously been clear. Here are some of the concerns resulting from the opinion.

-The Court’s holding that information in a database is a government record means that requestors can require public bodies to produce an unlimited variety of reports. The Court made clear that custodians must engage in computer programming to produce whatever compilation of information the requestor wants, and may charge a fee for this only where a substantial amount of programming or manipulation is necessary.

-The opinion casts doubt on the viability of the basic principle that OPRA does not obligate record custodians to research and collate information for requestors. The Court said that OPRA does not require the custodian to do research. However, its opinion does require custodians to compile and collate disparate pieces of electronic information, tasks which are typically thought to be inconsistent with the custodian’s duty.

-Further confusion is caused by the Court’s comment that the case law stating OPRA does not allow requests for information is incorrect, as applied to electronic records. This case law says that a valid request must ask for records, not simply pose questions. Is the Supreme Court saying that this is no longer correct, and requests for electronic records that ask questions must be answered?

-The opinion creates uncertainty as to whether GRC decisions are entitled to any weight or deference in court. The Court ruled that GRC informal guidance is entitled to no deference, and noted that the Superior Court should not defer to GRC decisions, but it then seemed to contradict these statements by commenting that the GRC’s interpretation of OPRA is entitled to deference in appellate review of GRC decisions.