Category Archives: GRC opinions

Appellate Division: Litigation Settlements Are Covered By OPRA’s “Immediate Access” Provision

The Appellate Division recently issued an opinion that will cause problems for custodians. The court ruled, for the first time, that OPRA’s immediate access provision applies to requests for litigation settlements. Scheeler v. Galloway Tp.

The court reversed a GRC decision which had upheld the denial of a request for the settlement agreement on the ground that the settlement had not been finalized at the time of the request. The document in question was entitled “Release and Settlement Agreement” and apparently consisted simply of the litigant’s release of the Township from all claims he may have against it. The rest of the litigation settlement terms were not in writing, but instead were orally agreed to by the parties’ attorneys.

The court disagreed with the GRC that the litigation had not yet been settled at the time of the request. Based on its conclusion that in fact there was a finalized settlement, the court held that the custodian should have disclosed the release.

Notably, the Appellate Division issued a separate ruling, holding that the release should have been disclosed immediately, under the section of OPRA requiring that immediate access be given to certain information held by public bodies, such as budgets, contracts, bills and employee salaries. The court said that because a release of litigation claims is a contract, this type of document is covered by the “immediate access” requirement.

As a result, even though the custodian provided the release to the requestor within 7 business days, the court held that the custodian unlawfully denied access by not providing it immediately.

No court had ever addressed previously whether a litigation settlement is the type of contract that is subject to OPRA’s “immediate access” section. As I’ll discuss in a future post, I think the Legislature did not intend this statutory provision to apply to settlement agreements.

Although the Scheeler opinion is unpublished, and therefore not binding on other courts, it is binding on the GRC, since the GRC was a party in the case. Consequently, in future cases, the GRC is obligated to hold that a custodian has committed a violation if a request for a settlement agreement is not fulfilled immediately. And as I’ve discussed previously, the GRC takes a hard line on the definition of “immediate access,” so that even a response time of a day or two may be a violation.

I suspect that many custodians will be unable to answer requests for settlement agreements so quickly. Nevertheless, they now face the risk of being penalized by the GRC for violating OPRA in these situations.

 

GRC: Police Body Camera Footage Is Not Exempt Criminal Investigatory Record

The GRC has issued its first decision on the question of whether police body camera footage is accessible under OPRA. Dericks v. Sparta Twp. (Sept. 29, 2017).

The GRC ruled that the criminal investigatory exemption does not apply to police body camera video concerning a criminal matter, because these recordings are required by law–namely, an Attorney General Law Enforcement Directive–to be made, maintained or kept on file. See this post for a discussion of how the Supreme Court’s Lyndhurst opinion made clear that Attorney General Directives have the force of law for purposes of the criminal investigatory record exemption.

In a footnote, the GRC stated that the Attorney General’s Directive does not provide confidentiality to body camera recordings under OPRA. It noted that the Directive places restrictions on disclosure of these recordings, but interpreted the Directive as saying that the restrictions do not apply when responding to an OPRA request.

The language of the Directive doesn’t seem to support the GRC’s interpretation. I read the Directive as providing that OPRA requests for these records must be referred to the Division of Criminal Justice or the County Prosecutor for a determination of whether the public need for access outweighs the law enforcement interest in maintaining confidentiality.

It’s surprising the GRC chose to deal with the issue of the requirements of the Directive in the Dericks opinion, because it did not need to reach this question in this case. The GRC held that the recording in this case was exempt on another basis–a statute providing confidentiality to records pertaining to juveniles charged with delinquency.

GRC: OPRA Penalties Are Personal

In a recent decision, the GRC reaffirmed its position that OPRA’s penalties are imposed upon the person  who knowingly violated the statute, rather than the public body employing that person. Doss v. Boro of Bogota, No. 2013-315/2014-152 (June 27, 2017).

The Doss case shows how strictly the GRC applies this concept. The GRC had sent the case to the OAL for a determination of whether the custodian or any other Boro employee had knowingly and willfully violated OPRA. At the OAL proceeding, the Boro stipulated that, through the prior Administrator, the Boro had knowingly and willfully denied access to the requested records, and agreed to pay the $1000 penalty. Based on this, the ALJ said that the case was resolved. However, the GRC disagreed, and it remanded the matter back to the OAL for a determination of whether any specific individuals had intentionally violated OPRA.

The GRC’s decision was based on the rationale that an OPRA penalty is personal, and is imposed solely on the individual who committed the violation. The GRC said that in this case, there was no evidence that the prior Boro Administrator had authorized the Boro to stipulate that he had knowingly committed a violation.

The GRC did not indicate that a public body is prohibited from paying the fine on behalf of the guilty employee. Nevertheless, despite the Boro’s conceding that it had violated OPRA, through the actions of its former employee, and despite the Boro’s payment of the penalty for a violation, the GRC determined that the case was not resolved.

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

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.

GRC: A Mayor’s Private Calendar is Confidential under OPRA

The GRC recently upheld Jersey City’s denial of an OPRA request for Mayor Fulop’s private meetings calendar. McDonald v. Jersey City. The GRC decision is based on Supreme Court and Appellate Division opinions holding that officials’ private calendars are confidential under OPRA.

This ruling shouldn’t be noteworthy, since New Jersey law has been clear for many years that OPRA does not permit the disclosure of public officials’ private calendars. However, in this case the GRC initially overlooked the relevant court opinions and issued a decision saying that the mayor’s calendar had to be disclosed. Fortunately, the agency subsequently realized that it had erred, reconsidered its previous determination and issued a decision that complies with OPRA case law.

GRC Holds, For The First Time, That Only New Jersey Citizens May Make OPRA Requests

In a decision issued on October  4, 2016, the GRC departed from its precedent of the past 14 years and ruled that only New Jersey citizens are permitted to make OPRA requests. Scheeler v. Burlington Tp. (2015-93).

The GRC primarily relied on a few recent trial court opinions that determined that the Legislature intended, in enacting OPRA, to prohibit those from outside the state from obtaining New Jersey government records. As I’ve discussed previously, I think this result is both wrong as a matter of law and unenforceable in practice.

In any event, the question of whether non-citizens may make OPRA requests is now before the Appellate Division, so by next year, when the court renders its opinion, the GRC’s position on the issue will no longer matter.

GRC: Custodian’s 100-Day Extension Violated OPRA

Custodians may lawfully extend the time to answer an OPRA request beyond the statutory period of 7 business days. However, as shown in a recent decision, the GRC may determine that too long an extension period constitutes a violation of OPRA.

In Rodriguez v. Kean Univ., the request sought correspondence among a large group of people concerning certain topics. The custodian needed 11 extensions, totaling around 100 business days, to answer this request. The request was made on November 4, 2014 and was answered on April 23, 2015.

The GRC noted that the custodian had to work with several people to determine if there were any responsive records. However, it did not consider this a sufficient reason to justify what it deemed “an extensive delay” in responding to the request. The GRC concluded that the custodian violated OPRA by “unnecessarily” extending the response time. The agency did not penalize the custodian, finding that the violation was not knowing and willful.

Public bodies need to be aware of the risk that the GRC will find a violation, and perhaps impose a fine, where multiple extensions are taken before responding to an OPRA request.

The GRC Continues to Misinterpret the “Immediate Access” Requirement

A few months ago, I discussed the GRC’s decision in Scheeler v. Dept. of Ed., which involved, in my view, a misinterpretation of OPRA’s provision requiring immediate access to certain types of records. The GRC recently denied the custodian’s request for reconsideration of this decision. Unfortunately, the reconsideration decision continues the GRC’s pattern of misapplying this aspect of the statute.

In this case, the requestor made a multi-part request, one part of which sought certain legal bills. After a brief extension period, the custodian responded to the entire request, providing some documents and advising that the agency did not have the requested legal bills. The GRC ruled that the custodian had violated OPRA by not immediately telling the requestor that there were no legal bills.

I think this conclusion is inconsistent with the statute, which says that citizens must be given immediate “access” to certain types of basic government documents, such as bills and contracts. There can be no violation of this right to “access” where the requested records do not exist.

In addition, I think that legal bills don’t fall under the immediate access requirement. They are significantly different from the other records covered by this provision–all of which can be quickly disclosed–because legal bills must be carefully reviewed for attorney-client privileged information before being released.

The Department of Education sought reconsideration of the GRC’s decision on a different basis. It argued that the records requested are not subject to the immediate access provision because they were not bills submitted to the Department for payment; instead, they were the documents submitted in litigation by a plaintiff in support of its application for an award of attorney fees.

The GRC rejected this argument, saying that the applicability of OPRA’s immediate access provision doesn’t depend on whether the bills were submitted to the agency. But this misses the whole point of OPRA’s immediate access provision. Its purpose is to require speedy disclosure of certain basic information held by public bodies, such as budgets, contracts, bills and employee salaries. Litigation records that are held by a different entity plainly do not come under the immediate access requirement.

There are no court cases on the immediate access provision, so the GRC’s decisions are the only precedent covering this section of the statute.

The GRC and the Issue of Access to Building Security Camera Footage

In November 2015, the Supreme Court granted review in Gilleran v. Bloomfield Tp., to determine whether video recordings from a security camera mounted on a public building are exempt under OPRA. The Court has not yet heard oral argument in the case, so it’s likely that its opinion will not be issued until late 2016 or early 2017.

Meanwhile, OPRA requestors continue to seek disclosure of building security camera footage, and file challenges to the denial of access to these videos. In a recent decision, Jones v. Teaneck (interim decision April 28, 2016), the GRC  said that the custodian must prove, at a hearing before an ALJ, that the security camera recording in question there is exempt.

Suprisingly, the GRC did not mention the Gilleran case in this decision. This is particularly troubling because it’s possible that the Supreme Court may hold, in Gilleran, that a public body is not obligated to present specific evidence in support of maintaining the confidentiality of this record in each case. The Court could determine that there is always a strong security interest in the confidentiality of security camera footage, and rule that OPRA’s security exemption bars access to these recordings in all cases.

The GRC should have held the Jones case pending issuance of the Gilleran opinion, rather than requiring the parties to engage in litigation that may be rendered unnecessary by the Supreme Court’s decision.

 

 

Summaries of GRC Decisions, February 2016 Meeting

This blog regularly summarizes the final decisions issued by the GRC at its meetings. The following are the final decisions issued at the GRC’s most recent meeting. For summaries of decisions from prior meetings, see here.

Shapiro v. City of Newark–The City correctly denied the request as invalid because it sought all documents concerning several topics. Although City employees failed to timely forward the OPRA request to the custodian, the evidence did not show who was at fault.

Garcia v. NJ Public Defender–The request was properly denied because it asked for Public Defender case file records, which are exempt.

Spillane v. NJDOC–The request was correctly denied because the records are exempt under regulations of the NJDOC.

Avila v. NJ Parole Bd.–Records related to executive clemency petitions are exempt under Executive Order 9 (1963).

Avila v. NJDOC–The request was properly denied because the agency had no responsive records.

Muata v. NJ Div. on Civil Rights–The request was properly denied because the agency had no responsive records.

Rodriguez v. Kean U.–The custodian violated OPRA by not immediately responding to the portion of the request seeking vouchers and invoices; the first response to the request came on the 8th business day after receipt. However, there was no knowing and willful violation, or denial of access, because the records were eventually provided.

Scheeler v. NJ DOE–The complaint was dismissed because it was filed before expiration of the extension period for responding to the request.

Rizzo v. Middlesex Prosecutor–The requested records were exempt criminal investigatory records. In addition, the agency’s mistaken previous disclosure of these records, during an inspection, did not preclude the subsequent denial of access on the basis that these records are exempt.

Drukerhoff v. NJ Parole Bd.–The request was properly denied because parole hearing records are exempt.