Monthly Archives: June 2015

OPRA and Christie Presidential Campaign Trips

As this article suggests, Governor Christie’s announcement that he is running for president will bring more attention to the question of the costs involved in having State troopers guard the Governor during his campaign trips. I have previously explained, here and here, that this question raises significant OPRA issues. These issues are presented in a lawsuit pending in trial court, in which a requestor seeks disclosure of detailed information on the State Police protective unit’s expenses while traveling with the Governor.

This case has important ramifications beyond the specific interest in the activities of Governor Christie. The court’s ruling will set precedent on the scope of OPRA’s exemption prohibiting the release of security-sensitive records. Also, because the case turns on the question of whether revealing detailed travel expense information will interfere with State Police protective measures, it affects the ability of the State Police to protect all future governors and other officials while they are traveling.

It is not clear when the trial judge will issue her opinion, but it may come out in the next few weeks.

Is An OPRA Violation Also A Civil Rights Violation?

In a recent opinion dismissing an OPRA declaratory judgment suit brought by a town, discussed here, the judge also said that the requestor’s New Jersey Civil Rights Act claim against the town was still open. The judge did not mention the allegations underlying this claim or analyze the legal arguments in any way.

A valid Civil Rights Act cause of action requires showing that the plaintiff’s constitutional rights have been violated. It is not unusual for requestors to include a count in an OPRA lawsuit alleging that the public body’s denial of access to records also violated their constitutional rights. However, the courts have not addressed whether such a claim is legally viable in an OPRA dispute.

In this context, a civil rights claim rests on the theory that the improper denial of access to public records violates a requestor’s First Amendment right to obtain information from the government. News organizations argue that this is part of their constitutional right to gather news. Over 20 years ago, in public records cases involving the old Right to Know Law and the common law, the New Jersey Appellate Division rejected the argument that there is a constitutional right to government information. There has been no New Jersey case law on this subject since then.

It seems to me that OPRA’s mandates should not be transformed into constitutional rights, and that the earlier court opinions should continue to apply to prohibit Civil Rights Act claims based on OPRA violations. However, the issue of whether a denial of access to records may also be a constitutional violation cannot be considered settled; it is not clear that a court today would apply the pre-OPRA judicial opinions to this question, in view of the sweeping changes to New Jersey public records law and policy that have resulted from the passage of OPRA.

Resolution of this issue has important consequences for public bodies, because civil rights litigation exposes them to the risk of substantial monetary damage claims.


OPRA Declaratory Judgment Suit Filed By Township Dismissed By Trial Court

As discussed here, the Appellate Division is considering the novel issue of whether public bodies may file a declaratory judgment action to resolve the validity of an OPRA request. A trial court judge recently issued an opinion, Hamilton Tp. v. Scheeler, holding that public bodies are not permitted to bring such suits. This opinion is of limited importance, in light of the impending ruling from the appellate court, but it has a few interesting aspects.

In Hamilton, requestor Harry Scheeler sought police department building video camera surveillance footage from Hamilton Township (Atlantic County). The Township filed a declaratory judgment action claiming it should be not be obligated to respond to surveillance video OPRA and common law requests from Scheeler and “Amy Von Bosse,” the latter a fictitious name used by Scheeler to make anonymous OPRA requests.

The trial judge held that OPRA does not permit a public agency to file suit to ask a court to adjudicate a records dispute, reasoning that under the statute, only the requestor is authorized to choose to file an OPRA complaint. The judge also said that allowing declaratory judgment suits would be contrary to OPRA’s policies, on the basis that such litigation would have a “chilling effect” on requestors. The judge awarded attorney fees to Scheeler because he had prevailed on the OPRA declaratory judgment issue.

I’m struck by several ironies presented by this opinion. One is that the judge’s award of attorney fees to the requestor undercuts a key argument against OPRA declaratory judgment raised by the New Jersey Press Assn. in the pending appeal, that permitting such lawsuits will deprive requestors of their ability to obtain attorney fees under OPRA. The Hamilton ruling suggests that, contrary to the NJPA’s claim, judges will award attorney fees to requestors who are successful in OPRA declaratory judgment actions.

Another great irony is that although the opinion rests in part on the idea that requestors will somehow be chilled by OPRA declaratory judgment suits, the requestor who was sued in this case actually contradicts this theory. Scheeler is a frequent OPRA requestor and litigant who has publicly declared that he is not intimidated by government efforts to dispute his attempts to gain access to records.

As mentioned above, the Appellate Division will resolve the validity of OPRA declaratory judgment litigation in its opinion, which may be issued within a few months.



New Appeal Asks Whether Judges May Fine Officials Who Violate OPRA

A recently-filed appeal raises an issue that has been under the radar, but is of critical importance to public agencies–whether trial court judges have the legal authority to impose OPRA’s financial penalties.

OPRA requires imposition of a civil penalty, ranging from $1000 to $5000, upon any public official or employee who knowingly and willfully violates the statute. The GRC has fined custodians under this provision, see this example of a $2500 penalty, but there is no clear case law on whether trial court judges also have the power to impose the statutory penalty.

North Jersey Media Group recently filed an appeal which presents this issue. The case concerns a reporter’s December 2013 OPRA request to the Governor’s Office for correspondence related to the now-infamous George Washington Bridge lane closures. The trial judge ruled that the Governor’s Office violated OPRA in responding to the request. North Jersey’s appeal argues that members of the Governor’s Office should have been subject to penalties for their handling of the request. The threshold question in the appeal therefore is whether a trial judge has the legal authority to impose OPRA’s penalties.

There is no precedential court opinion addressing this issue. In an unpublished 2008 opinion, the Appellate Division said that the statute provides that only the GRC, and not the trial court, has authority to impose penalties. I think the Appellate Division was correct, but of course a future court may disagree and decline to follow this non-binding opinion.

A ruling that trial courts may impose penalties would dramatically increase the risks and costs of agencies’ OPRA litigation. A penalty claim would require a judge to conduct a proceeding to determine whether any of the employees involved in the OPRA response committed the violation knowingly and willfully. This inquiry may well require discovery and an evidentiary hearing. As a result, many OPRA cases would turn into lengthy and expensive litigation.

In addition, giving judges the power to impose penalties would adversely affect the ability of agencies to settle OPRA actions favorably. Requestors would be able to use the prospect of costly and time-consuming penalty litigation, plus the risk of an increased attorney fee award as a result of this litigation, as added leverage in settlement negotiations with the agency.

The Appellate Division will probably issue its opinion in the North Jersey appeal some time late next year.


Proposed Legislation Extensively Changing OPRA Fails

An effort by open government advocates to change OPRA dramatically failed today, when the bill, S.782, was not approved by the Senate Budget and Appropriations Committee. The proposed legislation would have revised many longstanding requirements of New Jersey public records law and imposed additional burdens on public bodies and record custodians.

Here are just a few examples of the far-reaching, problematic changes to OPRA that were in S.782:

-A new definition of what constitutes advisory, consultative and deliberative material that would have greatly lessened the ability to withhold records showing agency deliberations

-A requirement that when any records are redacted, the custodian must supply the requestor with an affidavit–i.e., a sworn statement– describing each redacted document and the reason for redaction

-A prohibition against the promulgation of new regulations or executive orders exempting records from disclosure

-A provision that financial penalties will be imposed on custodians for gross negligence, replacing the stricter “knowing and willful” violation of law requirement

Governor’s Office OPRA Case Raises Issue of Creating a Record from a Database

This blog has previously discussed an important pending appeal, Paff v. Galloway Tp., which asks whether OPRA requires the custodian to create a new document from information contained in an agency’s database. This problematic issue has recently come up in a trial court case involving records of the Governor’s Office, Lagerkvist v. Office of the Governor.

A different claim in this case, involving the demand for disclosure of travel expenses of the State Police troopers who protect the Governor, has received substantial attention. This aspect of the case has overshadowed the fact that the requestor also seeks disclosure of the Governor’s Office’s “GovNews” database, which would show the recipients of emails from the Governor’s Office containing press releases and other media communications.

The Governor’s Office provided the requestor with a copy of the GovNews email “blast” that was sent on January 26, 2015, but Judge Mary Jacobson ordered that the requestor be given the email addresses of the recipients of this email blast. The judge also ordered disclosure of the entire contact database.

The Attorney General’s Office recently filed a motion asking that Judge Jacobson reconsider her order. Although the motion primarily argues that the contact database is exempt from disclosure,  the brief also states that producing the email addresses specifically related to the January 26 blast would improperly require the creation of a new record, because the email software of the Governor’s Office cannot print those addresses.

In the Paff appeal, the Township argues that OPRA does not require it to create a log from its database of emails, showing the sender, receiver, date, time and subject matter of each email sent by the Township’s police chief during a two-week period. Similarly, in Lagerkvist the argument is that the statute does not require the Governor’s Office to create a log of recipients of the email blast from its email database.

As shown by the Lagerkvist case, as well as the fact that many groups have filed amicus briefs in the Paff appeal (including the N.J. ACLU and the N.J. League of Municipalities), it is critical that the Appellate Division resolve the question of whether OPRA mandates the creation of records from databases.

The Lyndhurst Opinion: Important For All Agencies

The Appellate Division’s recent opinion in North Jersey Media Group v. Lyndhurst has received a substantial amount of press coverage because it dealt with OPRA’s exemption for criminal investigatory records in the context of a police officer’s shooting of a citizen. Despite the focus on records of criminal investigations, the opinion has significance for all public agencies, not just law enforcement, due to to its discussion of the law governing OPRA requests for records of any type of ongoing investigation.

Agencies often conduct investigations into matters that do not involve potential criminal wrongdoing. When any type of investigation is in progress, criminal or otherwise, OPRA permits records pertaining to the investigation to be withheld if disclosure would be “inimical to the public interest.” N.J.S.A. 47:1A-3a. There have been few published court opinions construing this phrase.

In Lyndhurst, the court established some criteria for evaluating whether disclosure would be inimical to the public interest. The court emphasized the risk of harming an ongoing investigation by public release of witness statements, which may cause other witnesses to question or change their own recollections. And it spoke generally of a public body’s interest “in conducting a thorough and effective investigation, untainted by premature release of investigative materials.”

While the court was dealing with a criminal investigation, its analysis of N.J.S.A. 47:1A-3a is applicable to records of any type of investigation in progress. As a result, all public bodies should be aware of the Lyndhurst opinion.


Appellate Division Opinion on Unintentional Disclosure of Privileged Documents

Does a government record that is exempt from disclosure retain its confidentiality when it has been unintentionally disclosed to a requestor or other individual? This question comes up when a document is mistakenly released, or when someone in an agency leaks information. Usually a record is considered to have lost its confidentiality after it has been disclosed to a member of the public, but an agency can take steps to preserve confidentiality when an unintended disclosure occurs.

The Appellate Division recently issued an unpublished opinion which shows how the Attorney General’s Office dealt with this type of situation and made efforts to preserve the confidentiality of the previously-released records.

The appeal involved a challenge by a State Police trooper to a decision by the Attorney General’s Office (OAG) not to defend him in a civil suit. In 2012, before the appeal was filed, State Police “Review Sheets” were leaked by an an unknown person to the trooper’s attorney. The OAG notified the attorney that these records were covered by the deliberative process privilege and should not be disclosed to others, and demanded that they be returned to the agency. The attorney refused to do so and publicly filed them in federal court, in a related suit.

The OAG filed a motion in federal court to prohibit the further disclosure of the Review Sheets. Although the federal court granted this motion, the trooper nevertheless sought to use these documents in his Appellate Division case, in effect arguing that the prior disclosure had made them public records.

The Appellate Division framed the issue as whether the OAG had intentionally waived the documents’ confidentiality. The court, relying in part on OPRA case law, determined that the Review Sheets contained opinions and recommendations and therefore were confidential under the deliberative process privilege. The court concluded that the OAG had not waived the privilege, even though the documents had been released.

The key to the court’s decision was its determination that the OAG did not intentionally waive the privilege; instead, the release of the documents was unauthorized and inadvertent. In this regard, the court noted that the OAG had “promptly and reasonably” notified the trooper’s attorney of its objection to disclosure of the records, and had moved in federal court to preserve their confidentiality.

The court ordered that the trooper return the Review Sheets to the State and refrain from further disclosure of their contents.


Major OPRA Issues Remain After Lyndhurst Opinion

As previously discussed in this blog, the Appellate Division’s recent landmark ruling in North Jersey Media v. Tp. of Lyndhurst resolved several key OPRA issues, including what police records are covered by OPRA’s criminal investigatory records exemption. But despite the court’s comprehensive opinion, several questions remain as to whether certain law enforcement records are subject to public disclosure. Here are three important issues that are unsettled:

(1) Are Use of Force Reports exempt from disclosure?

The court in Lyndhurst held that UFRs pertaining to a criminal investigation are exempt, based in part on its conclusion that these documents are not required by law to be made, maintained or kept on file. However, in 2009, in O’Shea v. Tp. of West Milford, a different appellate panel reached the opposite conclusion with regard to the “required by law” standard, and determined that UFRs are public records. As a result, in future cases, it is still possible that a trial judge will order release of a UFR related to a criminal investigation, if that judge chooses to follow O’Shea.

(2) Are dash cams that record traffic stops and other non-criminal matters exempt from disclosure?

The Lyndhurst court held that police vehicle dash cam recordings (also known as mobile video recorders) are exempt criminal investigatory records. But the court specifically noted that its opinion dealt only with recordings of criminal investigations, and did not address whether recordings of motor vehicle violation stops are subject to disclosure.

This leaves open a huge question–whether OPRA requires public disclosure of videos showing police interaction with citizens in situations not involving a criminal investigation. With the growing prevalence of police vehicle and body cameras, agencies will be confronted with many OPRA requests for such videos, raising difficult privacy issues.

(3) What will be the impact of Lyndhurst on common law right of access claims to criminal investigatory records?

Although the opinion held that criminal investigatory records are confidential under OPRA, it also said that such records may be obtained under the common law right of access to public records. A law enforcement investigatory file that is exempt under OPRA may be ordered released under the common law, depending on the specific circumstances of the case. For an example, see this unpublished Appellate Division opinion.

The Lyndhurst court remanded to the trial judge to assess the competing interests under the common law standard: what the Appellate Division characterized as the “intense” public interest in claims that police used excessive force, balanced against the “substantial” interest in conducting a proper investigation. It will be interesting to see if trial courts in future cases interpret the Appellate Division’s discussion of the common law interests to favor disclosure or confidentiality of investigatory records, particularly in high profile matters involving allegations of police misconduct.


New Trial Court Opinion Rejects An Invalid, Overbroad Request

Custodians often receive OPRA requests that do not properly ask for identifiable records, and instead require research to find responsive records. A common example of this problem is a request that seeks all information about a broad topic. As shown in this recent trial court opinion, this type of request is invalid.

The request, made to Lakewood Township, sought

Any proposal, request, inquiry or application, formal or informal, from any entity or individual  to acquire, swap, lease, exchange or engage in any other transaction related to any land contained within or directly adjoining, the Crystal Lake Preserve, and any communications…concerning same, since January 1, 2013.

The custodian denied the request on the ground that it sought “information and research.” She encouraged the requestor to refine the request and be more specific about what it was looking for. The requestor responded by filing suit.

Judge Grasso determined that the request was invalid for failing to identify records with specificity. He held that the request’s broad language, which covered any individual or entity and applied to any type of communication regarding any type of transaction related to land in or adjoining the Preserve, was an improper open-ended demand that required analyzing all Township records.

The judge made the salient point that requests like the one at issue here, “which are fashioned more like an interrogatory, are usually problematic [under OPRA] due to their lack of specificity….” Unfortunately, requestors continue to make such “interrogatory” requests, even though they are invalid under OPRA.