Monthly Archives: May 2015

Trial Court Upholds Timeliness of Agency’s OPRA Response

Agencies often find it difficult to respond to a request within OPRA’s tight 7-business-day time frame. Fortunately, the courts have upheld the validity of responses issued after the deadline, as long as the agency can show that it did not unreasonably delay in responding.

A recent trial court opinion, by Judge Grasso in Ocean County, while not precedential, does show how a judge may evaluate the timeliness issue. The OPRA aspect of this case involved requests to the Kean University Board of Trustees for Board meeting executive session minutes. The requestor complained that the Kean Board answered one request approximately 6 weeks after it was made. The request was submitted on December 18, 2014, but the Board explained that the University was closed in late December, and the Board’s executive director did not learn of the request until she returned from vacation in mid-January 2015. The redacted minutes were provided on February 2, 2015.

The judge determined that the University had complied with the statute in this situation, in view of the holiday season and the time necessary for redaction of the records. The opinion does not explain why additional time was needed for the redactions to be made. It appears that the judge essentially concluded that Kean had acted reasonably in fulfilling the request approximately two weeks after the Board’s executive director learned of it.









Public Officials’ Resumes Are Public–But Not Completely

OPRA requires disclosure of the resumes of government employees and appointees, so that the public can see the qualifications of those serving in government. But as noted in this recent GRC opinion, Rodriguez v. Kean University, before releasing a resume, a records custodian may need to redact some portions of it.

When OPRA was enacted, there was some question as to whether employee resumes should be treated as confidential documents because they are personnel records. In 2002 Governor McGreevey issued Executive Order 26, to deal with the status of various records under OPRA. One section of this Executive Order requires disclosure of the resumes of successful job applicants.

In Rodriguez, the GRC determined, as it has in other cases, that an OPRA request for certain employees’ resumes should be granted based on Executive Order 26. However, the GRC did not require release of the entire resumes; it specifically ordered disclosure of the resumes “with redactions where necessary,” noting as an example that it has previously upheld the redaction of a home address from a resume on privacy grounds.

Resumes usually contain other information that may be protected by a privacy interest, such as a personal email address and home telephone number. In fact, as discussed in this New Jersey OPRA Law Reporter post, the GRC has held that personal email addresses are confidential under the statute’s privacy provision..

In addition, although not mentioned by the GRC, the Supreme Court has ruled that OPRA’s personnel records section permits disclosure of only a narrow category of information concerning an employee’s education and experience:  the records showing that a public employee meets the specific education and experience qualifications that are prerequisites for his job. This suggests that redactions may be necessary where a resume contains information unrelated to the qualifications specifically required for the employee’s position.


Governor Christie’s Trips Require Court to Examine OPRA’s Security Exemption

Governor Christie’s frequent travel around the country often makes news. It also may produce pivotal, much-needed case law on OPRA’s exemption for security-related records.

In examining the costs of the Governor’s trips, the press has reported that the State Police’s Executive Protection Bureau (EPB), which provides security to governors and other officials, had close to $1 million in travel expenses since Governor Christie first took office. Although the total amount of EPB expenses has been made public, a reporter filed a lawsuit over the denial by the Governor’s Office of his OPRA request for the credit card statements which would show the specific charges made by EPB officers during the Governor’s trips. Judge Mary C. Jacobson, Assignment Judge, Mercer County, is scheduled to hear oral argument in the case on May 28.

The Governor’s Office denied the request on the basis of OPRA’s “security risk exemptions.” As explained in the brief recently filed by the Attorney General’s Office, the records must be kept confidential because they contain “date-by-date” and “transaction-by-transaction” details, information that would reveal the identities of EPB officers and the number of officers providing security. The Attorney General argues that the credit card statements also would provide potential wrongdoers with “deep insight into the EPB’s security procedures.” The brief says that such exposure of EPB security measures would compromise the security of the Governor, other high-ranking officials, and innocent bystanders.

As may be seen, this case has important ramifications beyond interest in Governor Christie’s travels, because it involves the ability of the State Police to protect all future governors. If the detailed expense statements do enable the viewer to figure out EPB security procedures, the risk to anyone protected by the EPB is clear. The court must determine whether disclosure of the information in fact would potentially interfere with the EPB’s protective measures.

This is not a new issue under OPRA; as the Attorney General’s brief notes, litigants have sought access to similar EPB travel records in several other cases. The issue keeps coming up because there is always public interest in the activities of the Governor’s Office and the State Police. Despite this, no New Jersey court has rendered a precedential opinion on whether OPRA requires disclosure of EPB expense records.

It is time for the trial court in this case–or if there is an appeal, a higher court–to issue an opinion that resolves the question of whether these records are covered by OPRA’s security exemption.

GRC: Internal Affairs Investigations of Police Officers are Exempt from Disclosure

OPRA requests for information about complaints against police officers are common, particularly in view of recent high profile controversies involving encounters between the police and citizens. The Government Records Council has consistently ruled that records of citizen complaints about police officers, and police department internal affairs investigations of specific officers, may not be disclosed, under OPRA’s exemption for personnel records.

The GRC recently reaffirmed this conclusion in Wares v. Passaic County Sheriff’s Office. In this case, the requestor asked for all complaints from the public and internal affairs investigations regarding several sheriff’s officers. The GRC upheld the denial of the request on the ground that these documents fall within the personnel records exemption, noting that this statutory section covers records relating to any grievance filed by or against a public employee.

As noted in this post, the question of the confidentiality of police internal affairs investigations is currently before the Appellate Division. The trial court opinion under appeal rejected, with little analysis, the argument that the personnel exemption applies. It will be interesting to see if the appellate court agrees with the GRC’s approach to the issue.

Pending Case Asks: Does OPRA Require an Agency to Create a Report from a Database?

The storage of information in electronic databases raises an issue that often comes up under OPRA but has yet to be decided by the appellate courts: must a custodian comply with a request for a report showing certain information contained in an agency database? Put another way, is this type of request–which involves compiling a variety of information from a database– legally invalid because it requires the creation of a new record?

This issue is currently pending before the Appellate Division in Paff v. Galloway Township, A-000125-14T4. New Jersey OPRA Law Reporter previously discussed this case briefly here, focusing on its potential impact on law enforcement agencies. But this appeal affects all agencies, not just the law enforcement community, because the question at the heart of the case concerns the validity of all OPRA requests for compilation of information from any database. The importance of the case is shown by the fact that the League of Municipalities, the New Jersey ACLU and the New Jersey Association of Chiefs of Police have filed amicus briefs with the court.

Galloway has appealed the trial judge’s grant of a request for a log showing the sender, receiver, date, time and subject matter of each email sent by the township’s police chief during a two-week period. The argument that this request is invalid is straightforward–the log must be created by the Township, and case law says that OPRA does not obligate an agency to create a new record. The opposing argument is also straightforward–OPRA requires production of the log because the statute defines a government record as including “information stored or maintained electronically,” and the requested email information is maintained in Galloway’s electronic records.

Neither the Supreme Court nor the Appellate Division has addressed this conflict between OPRA’s language and the rule that OPRA does not require the creation of a record. Resolution of this issue will have a wide impact beyond the specific question in the Paff appeal of access to a log of email information. Many OPRA requests seek reports drawn from electronic databases. This appeal should provide crucial guidance on whether the law requires agencies to produce such reports.

Appellate Division Upholds Regulation Exempting Officer Duty Assignment Information

In this opinion, the Appellate Division rejected the ACLU’s challenge to a regulation adopted by the Department of Law and Public Safety which exempts from disclosure under OPRA any information that may reveal the duty assignment of a law enforcement officer. This is the first time the appellate court has addressed, under OPRA, the validity of a regulation precluding access to a record.

The regulation exempts a law enforcement officer’s duty assignment, as well as any information that may reveal the assignment, including “overtime data pertaining to an individual law enforcement officer.” The ACLU argued that this exemption is contrary to OPRA’s requirements and the public interest. The court disagreed. It determined that a law enforcement officer’s duty assignment falls within OPRA’s exemption for personnel records. The court also emphasized that the Department’s regulation is consistent with the public interest, by protecting officers and the public.

The court’s opinion also dealt with a separate appeal by the New Jersey 2d Amendment Society, which sought disclosure of the State Police’s Firearms Applicant Investigation Guide. This case involved another Department of Law and Public Safety OPRA regulation, which exempts from disclosure certain types of standard operating procedures.The Appellate Division did not rule on the request for the Guide, but instead remanded the case to the trial court for consideration of whether the Guide fell within the exemption regulation.

As a result, this part of the opinion is of limited usefulness for agencies. On the other hand, agencies should be aware of the portion of the opinion discussing the duty assignment regulation, as it contains valuable guidance for dealing with issues presented by OPRA requests for this type of information.

While the opinion has resolved the key question of the validity of the duty assignment regulation, there are still many open issues. One is whether a law enforcement officer’s overtime information can be confidential. The regulation expresses the Department’s position that there are situations where overtime information may reveal an officer’s duty assignment. The court did not discuss this issue, but it “caution[ed]” the State Police against improperly denying access to overtime information, which is typically open to the public. This tension between the need for confidentiality of officer duty assignments and the interest in disclosure of a public employee’s compensation is sure to generate more litigation.

Appellate Division Opinion: Bloomfield Township Must Disclose Building Security Camera Recordings

On May 13, 2015, in a precedential opinion, the Appellate Division held that Bloomfield Township should not have denied an OPRA request for a day’s recordings of a video camera stationed at the back of its municipal building. See Gilleran opinion. What’s truly significant about this opinion is that although disclosure was ordered in this case, the court emphasized that custodians are not always required to release such videos, and the judges provided helpful guidance as to how to handle future requests for such records.

The Township argued that it properly denied the OPRA request for the security camera recordings on the basis of the statute’s exemptions for “security information or procedures for any buildings…which, if disclosed, would jeopardize security….” and “security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons [or] property….” It relied on a certification by its Administrator, which stated that the camera is part of the building’s security system, and also noted that the area shown by the camera may be used by police officers, informants and crime victims.

The court rejected the argument that a building security camera’s recordings are per se exempt from disclosure, and held that the Administrator’s certification was too general to support confidentiality; in the words of the court, the certification “was not sufficiently specific to establish a risk to the safety of any person or property or jeopardy to the security measures taken for the building.” Therefore, Bloomfield failed to satisfy its burden of proving that the recordings were exempt.

But the court stated that its ruling in favor of disclosure was based only on the inadequate certification submitted by Bloomfield. The court went on to provide examples of statements in a certification that could potentially satisfy the security and safety exemptions. For example, there were no statements from the police indicating that the identity of informants or victims would in fact be revealed by the videos, nor was there a specific explanation of how the security system would be compromised.

The court recognized the critical law enforcement interests at stake where a requestor seeks disclosure of a building’s security camera, commenting: “In an age when security and surveillance camera recordings may be vital to the identification and prosecution of criminal offenders, and may provide a deterrent against planned acts of violence and other criminal conduct, we do not agree indiscriminately with…[the] argument that the public has an ‘unfettered’ right of access to security camera recordings with the exception of precise and very limited redactions.”

In addition, the court gave custodians guidance on how to handle a request for a video showing hours of recordings. When this occurs, said the court, the agency is not obligated to review all of the footage and withhold only the parts showing confidential information. The court rejected this approach (which had been suggested by the requestor here) as “impractical,” “unreasonably burdensome,” and not within the Legislature’s contemplation. Instead, the request may be denied, if supported by the type of evidence of potential security harm described above.

In short, the Gilleran opinion is important and likely to be cited often by agencies.

As a side issue, it’s interesting to note that the court mentioned, in a footnote, that its opinion does not address the privacy issues raised by OPRA requests for recordings made by police body cameras. This New Jersey OPRA Law Reporter post discusses these issues.


GRC: Redaction of Personal Email Addresses is Proper

Record custodians often deal with government business emails sent from or to a personal  account. In a recent decision, D’Andrea v. N.J. Civil Service Comm., the GRC reaffirmed its prior rulings that personal email addresses are protected by the expectation of privacy and should be redacted. The GRC noted that while the public is entitled to know the identity of the individual who sent or received the email, the personal email address is private.

Because the New Jersey courts have not yet addressed this issue, agencies should look to the GRC’s decisions for guidance on handling personal email addresses shown in a government record.

Izod Center OPRA Case: How To Handle An Overbroad Request

A trial judge recently issued this opinion dismissing Senator Loretta Weinberg’s lawsuit against the New Jersey Sports and Exposition Authority (NJSEA) over its response to her OPRA request for information concerning the closure of the Izod Center. Although this opinion doesn’t carry the weight of judicial precedent, it’s of interest because it shows how an agency and a judge dealt with a common problem under OPRA–how to handle OPRA requests that are overbroad and improperly fail to identify specific records.

The request in issue here was a classic example of an information demand that is not valid under OPRA case law. The request had 16 parts and sought a wide range of information, including all documents “related in any way” to the agency’s consideration of and decision to close the Izod. Also, many of the sections of the request asked for all records concerning other broad topics. For example, one part sought any documents showing discussions or communications with “any individual or entity” concerning the Prudential Center’s plan to “explore investment opportunities in real estate projects near the Prudential Center within the previous five years.”

In my view, the NJSEA responded to this improper request in a sensible way that minimized its litigation risk. The agency could have simply denied the entire request outright on the ground that it failed to ask for specific records and required the custodian to conduct research. Instead, it advised Sen. Weinberg’s office that much of the request was overbroad and asked that it be clarified and narrowed. In addition, the agency indicated that it would supply some records, but needed more time due to the voluminous nature of the request. It eventually released approximately 400 documents and offered to meet with the requestor to discuss further.

The requestor declined to narrow the request  and filed suit. Judge Doyne held that the request was invalid because it required the custodian to conduct research and exercise discretion in order to respond. The judge said the custodian would have to interview agency employees to determine what documents might, for example, relate to their consideration of the closure decision, and then exercise discretion as to which of these documents were responsive.

The judge concluded that this procedure would violate the basic principle under OPRA that it is up to the requestor to identify the records sought, rather than force the custodian to make that judgment.

The judge’s decision was also influenced by the NJSEA’s efforts to work with the requestor and provide some documents. The fact that the NJSEA released documents did not alter the invalidity of the OPRA request. As the judge astutely observed, the NJSEA should not be found in violation of OPRA for making good faith attempts to reach a resolution of the improper request, consistent with OPRA’s policies favoring cooperation between requestors and agencies.