Monthly Archives: July 2015

GRC: Personal Cell Phone Bills Are Not Public Records

In a case of first impression in New Jersey, the GRC recently determined that OPRA does not require disclosure of information on a public employee’s personal cell phone bills, even where the personal phone is sometimes used for public business. See Verry v. Boro of South Bound Brook.

The requestor in this matter believed that the Borough Clerk used his personal cell phone to conduct public business and also to make private calls while at work. His OPRA request sought the destination location of calls made and received, on various dates, on that phone.

The GRC referred the  case to an ALJ, who ruled that the use of a private cell phone to make personal calls at work does not trigger OPRA, and that the privacy interest in the cell phone records outweighed the requestor’s interest in obtaining records of call destination location. The GRC adopted the ALJ’s decision.

The ALJ noted that the courts have determined that public employee telephone records are generally confidential and protected by privacy expectations. He performed the balancing test required by the Supreme Court in OPRA privacy cases, and concluded that the requestor had not shown a need for the call location information that overcame the clear privacy interest in one’s personal cell phone bills.

The requestor primarily relied on the Appellate Division’s opinion in an OPRA case, Livecchia v. Boro of Mount Arlington, where the court required disclosure of destination location data from government employees’ public cell phones, based on a claim that these employees were using the phones for personal calls. The ALJ said that Livecchia did not apply because there the phone charges were paid by the public agency; in the present case, the public did not pay for usage of the phone.

The most important aspect of this case is that the GRC rejected the requestor’s argument that the ALJ should have held a plenary hearing to determine how much the cell phone was used for government matters. I’m sure that many public employees occasionally use their personal cell phones for a work-related call. This should not subject them to the threat of an OPRA suit involving discovery and a hearing concerning their personal cell phone records.

It should be kept in mind that this decision deals only with personal cell phone bills and does not involve an important question that no New Jersey court has yet addressed: whether OPRA covers text messages about government business on personal cell phones.

OPRA Issues Raised By Police Body Cameras

The State has announced that State Troopers and many local police officers will be equipped with body cameras, and the Attorney General has issued a statewide directive governing the use of these cameras and their recordings. As I have previously discussed (see here and here), body cameras raise significant new OPRA issues.

It’s clear that recordings made by police body cameras are government records under OPRA. A recording that pertains to a criminal investigation is exempt from public disclosure, as held by the court in the Lyndhurst opinion, but all others generally should be accessible.

Consistent with these OPRA requirements, the Attorney General’s directive expressly states that public access should not be granted to recordings pertaining to criminal investigations, but it does not restrict public disclosure of any other recordings. Many police activities that do not necessarily involve a criminal investigation must be recorded, according to the directive, such as motorist aid, community caretaking checks, and transporting an arrestee. And police departments are permitted to specify additional non-criminal situations that their officers must record.

This means that many body camera recordings will be subject to disclosure. As a result, police departments will be confronted with the difficult issue of whether granting OPRA requests for videos of police-civilian interactions will harm the privacy interests of the individuals shown in the videos. Custodians will have to assess the privacy question on a case-by-case basis, under the test established by the Supreme Court in its Burnett opinion, which calls for balancing the requestor’s interest in disclosure against the affected individual’s privacy interest. At this time, there is no case law that addresses the privacy issue in the context of police camera videos.

In addition to the substantive legal questions raised by OPRA requests for body camera recordings, there will likely be an enormous OPRA workload burden placed on police departments. I expect that police departments with body cameras will be inundated with OPRA requests for recordings, both from those seeking to monitor officers’ behavior as well as from individuals curious about a neighbor’s interaction with the police.

These requests cannot be answered quickly, in view of the need to consider privacy issues with regard to each video. In addition, the Attorney General’s directive requires that law enforcement agencies provide notice of all requests for access to body camera recordings to the Division of Criminal Justice or the County Prosecutor, presumably to ensure that the video does not pertain to a criminal investigation.

The body camera policy goes into effect in 60 days. Troublesome OPRA issues may be expected soon after the effective date.



Resumes Of Unsuccessful Candidates For Public Employment Are Confidential

This recent Trentonian article suggests that the City of Trenton improperly denied its OPRA request for the resumes of the applicants who were not chosen for the position of chief municipal prosecutor. However, the law is clear that OPRA prohibits a public body from releasing these personnel records.

Job applicants’ resumes are classic examples of personnel records. While resumes of public employees may be subject to disclosure (as discussed in this post), the resumes of the individuals who applied for jobs, but were not appointed, are confidential under OPRA’s strict limitation on revealing personnel information.

The Trentonian article incorrectly says that an executive order makes public the resumes of those who didn’t obtain employment and requires the public body to determine if the candidate consents to disclosure of the resume. The executive order in question, Executive Order 26 (McGreevey), does not state that the resumes of unsuccessful job candidates are public records; in fact, such a statement would be legally invalid, because it is contrary to OPRA’s personnel exemption provision. And nothing in the executive order provides that an agency must determine if an unsuccessful candidate would consent to public release of his or her resume.


Summaries Of Recent GRC Decisions

This blog summarizes the final decisions rendered each month by the GRC. The summaries below are of the cases decided at the GRC’s most recent meeting, held at the end of June (see here for summaries of the decisions issued at the GRC’s previous meeting in May 2015).

-Carter v. Franklin Fire Dist. 1: GRC adopted the ALJ’s decision that the custodian did not knowingly and willfully violate OPRA, and therefore should not be penalized, but reversed the ALJ’s award of attorney fees to the requestor, because the requestor had not prevailed on the penalty claim.

-Verry v. Boro of South Bound Brook (#2011-280): GRC held that the custodian’s personal cell phone bills are not government records, and the possibility that the cell phone might have been used on occasion for government business did not outweigh the privacy interest in the bills.

-Verry v. Boro of South Bound Brook (#2013-311): GRC awarded requestor attorney fees of $3720, for 12.4 hours at $300).

-Camarata v. Essex Prosecutor: GRC held that records of an internal affairs investigation are exempt.

-Barry v. NJ Transit (#2014-264): GRC held that the requested record was exempt as a criminal investigatory record.

-Barry v. NJ Transit (#2014-309): GRC held that the custodian did not commit a knowing and willful violation of OPRA.

-Sedges v. Morris Prosecutor: GRC held that the custodian erred by failing to give the requestor a specific reason for denying the request, but dismissed the complaint because no responsive records existed.

-Saccento v. Morris Prosecutor: GRC dismissed the complaint because records were released to the requestor.

-Scheeler v. Woodbine Bd. of Ed (#2014-17): GRC held the custodian erred by not giving immediate access to certain contracts, bills, expenditures and salary information, and failing to provide salary information for a few employees. It determined that the violations were not knowing and willful.

-Scheeler v. Woodbine Bd. of Ed (#2014-59): GRC held that the custodian performed an insufficient search, but determined there was no knowing and willful violation.

-Scheeler v. Dept. of Ed: GRC held that a request for identity of the person who answered certain OPRA requests was an invalid information request.

-Moore v. State Police: GRC held that a request for “information” about a murder is invalid.

-Abdur-Raheem v. Div of Criminal Justice: GRC held that request for an entire case file is an invalid request.

-Sanders v. Dept. of Corrections: GRC held that a request for all records regarding the requestor is invalid.

-Gould v. Twp of Fairfield: GRC held that the request was invalid as overly broad.

-Paladino v. Dept. of Corrections: GRC held that the custodian properly denied the request because the requestor did not have sufficient funds in his inmate account to pay copying fees.

-Janson v. Burlington City: GRC declined to penalize custodian, despite the failure to respond timely to the request, because records were eventually provided and there was no knowing and willful violation.

-Coulson v. Kearny Fire Dept.: GRC declined to penalize custodian, despite the failure to respond properly to the request, because records were eventually provided and there was no knowing and willful violation.

-Bernisky v. State Police: GRC held that the records were exempt criminal investigatory records.

-Hall v. Upper Saddle River: GRC declined to penalize custodian, despite the failure to respond  timely to the request, because records were eventually provided and there was no knowing and willful violation.

-Marck v. Div. of Consumer Affairs: GRC held that a licensing application  submitted to Board of Professional Engineers is exempt under a Dept. of Law & Public Safety regulation.

-Palkowitz v. Hasbrouck Heights (#2014-302): GRC declined to penalize custodian, despite finding that the special service charge was incorrect, because there was no knowing and willful violation. For a discussion of the special service charge calculation issue, see this previous post.

-Palkowitz v. Hasbrouck Heights (#2014-346): GRC held that a request for all footage from all police department cameras was invalid overbroad request.

-Dalal v. Camden Prosecutor: GRC dismissed complaint because the public body had no records responsive to the request.

-Wares v. Passaic Prosecutor: GRC held that complaints from the public about law enforcement officers’ actions are exempt personnel records, and internal affairs records are exempt under Attorney General guidelines.

-Eden v. Little Egg Harbor: GRC held that a request to create a list showing the properties at certain assessed values, and including other information about the properties, was an invalid research request.

-Anonymous v. Ocean City Historic Preservation Comm: GRC held that a draft map is exempt as advisory, consultative and deliberative material.

Appellate Division: GRC Correctly Did Not Impose Penalty On City Of Orange

In an unpublished opinion issued today, the Appellate Division affirmed the GRC’s decision that the City of Orange should not be penalized for its actions in responding to an OPRA request.

The City responded belatedly to the request for a list of active lawsuits involving the City. In addition, its response omitted several relevant suits, but the requestor was already aware of the existence of these cases. The GRC concluded there was no willful and knowing violation of OPRA under these circumstances.

The court agreed, noting that the City did create lists for the requestor and was “generally proactive” in dealing with her inquiries. The court also emphasized that the omission of a few cases did not constitute a denial of access to records, because the requestor already had the requested information about these lawsuits.

Although the opinion has no precedential value, it’s interesting as an example of the tendency of the courts (as I’ve previously noted here) to excuse technical violations of OPRA, as long as the public body acted reasonably in dealing with the request.

Update: Journalists’ Opposition To Publicizing FOIA Requests

This post discussed journalists’ objections to a new FOIA policy, in terms of the objections’ relevance to an appeal pending in New Jersey, where the court will decide whether OPRA requests are confidential. The FOIA protocol is that when a federal agency grants a FOIA request from the media and other organizations, it will also post the documents online, so that the public can see what was produced.

This  recent Huffington Post article goes into more detail about journalists’ criticisms, which boil down to the concern that revealing what they requested will harm media investigations of government. Although the article quotes various open government activists who support the policy, it’s notable that reporters, including those at the New York Times and the Washington Post, want some degree of confidentiality applied to their records requests to protect their ability to conduct investigations into government activities without alerting other journalists.

This exact concern was cited by the Appellate Division, in the Gannett opinion, for why OPRA requests should be confidential. The court’s example was that if another news organization were conducting an investigation into an agency’s financial practices, it would not want Gannett to be able to have that agency disclose all records that had been provided to Gannett’s competitor.

As indicated in Gannett, as well as in many other New Jersey judicial opinions, under OPRA, access to government records sometimes must give way to third parties’ interests in privacy and competitive advantage. The journalists’ objections to the FOIA policy confirm that these exceptions may well apply to requests to see others’ OPRA requests.


Public Bodies Face Risk Of Attorney Fee Awards In Common Law Records Cases

One of OPRA’s most significant provisions is the requirement that public bodies must pay the attorney fees of a requestor who prevails in litigation. What’s often overlooked is that a public entity can defeat an OPRA claim, and still have to pay a substantial attorney fee award, if the court determines that the requestor may obtain the documents under the common law right to public records.

For example, as discussed here, an Atlantic County trial judge recently held that a public body had correctly denied an OPRA request, but awarded over $45,000 to a plaintiff under the common law. The judge determined that he had the authority to make this award under a 2008 Supreme Court opinion, Mason v. City of Hoboken.

Until the Mason opinion, attorney fees had never been awarded in common law records suits. This longstanding practice was overturned by a single, gratuitous sentence in the Supreme Court’s opinion.

Mason involved two issues: the statute of limitations applicable to OPRA lawsuits, and whether the “catalyst theory” of attorney fee awards applies under OPRA. The question of awarding attorney fees under the common law right to know was not raised in the briefs or during argument; I know this because I argued this case for the State. Nevertheless, after a lengthy discussion of OPRA’s attorney fee provision and the catalyst theory, the Supreme Court said:

“The parties have not addressed at length whether the question of attorney’s fees merits  different treatment in an action brought under the common law. Absent an apparent, theoretical basis for such a distinction, we conclude that the catalyst theory applies to common law suits as well.”

Based on this statement, some courts have awarded attorney fees where a plaintiff is successful solely on a common law claim. Although the Appellate Division has determined, in non-precedential, unpublished opinions, that fees may be denied to a successful common law plaintiff, see Paff v. Garwood and Kahler v. State Police, these rulings say that Mason permits a judge to exercise discretion to grant fees in an individual case, such as where the denial of access to the record was unreasonable.

This result is completely contrary to New Jersey law. As the Mason Court itself recognized, New Jersey follows the “American Rule,” under which the prevailing litigant cannot recover attorney fees from the losing party, unless such shifting of fees is specifically permitted by statute, court rule or contract. The common law right to public records, unlike OPRA, contains no authorization to award fees to the prevailing party.

The Mason opinion did not deal with this clear barrier to awarding fees in common law cases. I think that if this issue were to be presented to the Supreme Court now, with the argument fully briefed, the Court would conclude that a judge has no discretion to award fees under the common law. But no such case is before the Court currently. The Atlantic County case mentioned above has been appealed, but it is far from reaching Supreme Court review.

As a result, the Supreme Court’s curious statement in Mason must be followed by the courts at this time. Public bodies should keep in mind that even if there is a strong basis under OPRA to deny a records request, there is still a risk that a judge may grant the request under the common law, and require payment of attorney fees.


Trial Court Awards $45,000 In Attorney Fees To Requestor

A trial judge recently made an award of over $45,000 in attorney fees to a plaintiff who obtained documents under the common law right to know. This award is notable because the amount is substantially higher than a typical OPRA attorney fee award.

The amount is high for two reasons. First, the number of hours spent by plaintiff’s counsel, approximately 113, was unusually high for government records trial litigation. The judge concluded that the attorney reasonably spent so many hours, because the case was complex and involved novel issues and several court appearances.

Also, the judge substantially enhanced the attorney’s hourly rate. He set it at $400 per hour, rather than the $350 he had awarded in an unidentified prior OPRA case. The judge did not explain the basis for this decision, beyond saying that counsel’s credentials here were impressive.

This is the second time in the past several months that a judge has awarded an enhanced attorney fee in an OPRA case, despite the fact that the Supreme Court has said that such increases should rarely be granted to OPRA plaintiffs.

It is also significant that a $400 hourly rate is well above what is normally awarded in public records litigation. In the earlier case mentioned above, the plaintiff’s attorney, an experienced OPRA attorney, was granted an hourly rate of $315. The usual rate awarded in OPRA matters over the past several years has been in the $300 to $350 range.


How Media Objections to FOIA Policy May Affect OPRA Case Law

In an exquisite irony, journalists are objecting to a new federal FOIA policy that provides the public with greater access to government records.

The federal government recently implemented a new procedure: when an agency grants a FOIA request from the media, a corporation or a nonprofit organization, it will also post the documents online, so that the public can see what was produced. Even though this results in more liberal public access to government records, some journalists oppose this practice.

As explained in this media blog post, reporters say the policy penalizes the journalists who put in the work of making the FOIA request, by precluding their ability to report exclusively on the documents obtained. The Washington Post’s investigations editor also notes that it may affect investigations built on a number of FOIA requests over time.

What does this controversy have to do with OPRA? The objections raised by the media support the argument made by the State in a pending appeal, Scheeler v. Governor’s Office, which involves the question of whether OPRA mandates disclosure of the OPRA requests received by an agency. The State’s position is that OPRA requests are confidential, as recognized by the Appellate Division in a 2005 opinion. The appellate court noted that disclosure would penalize reporters who make OPRA requests, based on the type of rationales stated by those opposing the FOIA policy.

The journalists’ objections to the new FOIA policy show that the concerns expressed in the 2005 Appellate Division opinion are not hypothetical, and should considered in the current appeal.





Update: Important OPRA Issues On Appeal

The following is a list of currently pending appeals that present significant OPRA issues.

-North Jersey Media Group v. Lyndhurst

As discussed here, a few weeks ago the Appellate Division issued a landmark opinion upholding the confidentiality of criminal investigatory records. The requestor, North Jersey Media Group (The Record), announced that it would appeal to the Supreme Court.

-Gannett v. Borough of Raritan

This appeal involves several issues concerning access to records in electronic format and the amount a public entity may charge the requestor for converting the records to that format. The case is especially notable because the court is also reviewing the reasonableness of the $600,000 attorney fee award granted to the plaintiff for prevailing. This is far and away the largest attorney fee award under OPRA.

-IMO NJ Firemen’s Assn Obligation to Provide Relief Applications Under OPRA

This appeal presents a novel question: whether a public body may file a declaratory judgment action asking the court to determine that it may deny an OPRA request, before the requestor has challenged the denial. The court heard oral argument a few weeks ago, so it is possible its opinion will be issued soon.

-Paff v. Bergen County

The issue in this appeal is whether the names of officers and complainants shown in police department internal affairs complaints  must be disclosed.

-Paff v. Galloway Tp.

The issue in this appeal is whether the township must create and disclose a log listing all emails sent by the police chief during a 2-week period. As explained here, the key legal question presented is one that often comes up: is a custodian obligated under OPRA to create a new document from information contained in an agency’s database? The Township appealed and several organizations have joined the case as amici, including the League of Municipalities, the NJ Association of Chiefs of Police and the NJ ACLU.

-North Jersey Media Group v. Office of the Governor

In this appeal, the court is asked to determine whether judges have the authority to impose fines upon individuals who violate OPRA.