Monthly Archives: August 2015

Fall Preview of Important OPRA Cases

Fall isn’t just when school and the NFL season begin; it’s also when the New Jersey Appellate Division and Supreme Court become more active. I anticipate that the Appellate Division will issue opinions in several important OPRA cases in the next few months. There are many other significant OPRA cases on appeal, but the ones listed below have been pending for a while and are most likely to be decided by the court in the near future.

-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.

-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.

-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.







GRC: Autopsy Reports Are Not Exempt From Disclosure As Criminal Investigatory Records

The GRC recently determined, for the first time, that autopsy reports are not covered by OPRA’s exemption for criminal investigatory records. Schultz v. State Police (2014-390).

In Schultz, the GRC noted that its prior decisions held that autopsy reports are exempt criminal investigatory records. The GRC reversed its position because, it said, it was not previously aware of N.J.S.A. 52:17B-88, which requires that the findings and conclusions of an autopsy be filed in the offices of the State Medical Examiner, the county medical examiner and the county prosecutor. According to the GRC, this statutory provision means that autopsy reports do not meet OPRA’s definition of a criminal investigatory record, which applies only to records not required by law to be made, maintained or kept on file.

The GRC emphasized that it was not holding that autopsy reports must be disclosed in their entirety, as other exemptions may apply to information contained within a specific report. In addition, photos and videos from an autopsy continue to be exempt, as stated in OPRA, N.J.S.A. 47:1A-1.1

The Schultz case involved a closed criminal investigation. It doesn’t offer specific guidance on how to deal with a request for an autopsy report while the investigation is ongoing.

It’s worth noting that there is some ambiguity in exactly what N.J.S.A. 52:17B-88 means with regard to public access to autopsy reports. In addition to the language the GRC relied on, this statute also says, in an amendment added in 1989, that a copy of the report must be released to the closest surviving relative of the decedent within 90 days of receipt of a request. The legislative history of the amendment states that this provision was needed because nothing in the law at the time enabled the decedent’s family to obtain the report.

This statement suggests that the Legislature believed that the Right to Know Law–which applied at that time– did not make autopsy reports publicly accessible, despite the statutory requirement that the report be filed with certain offices. Because the legal standards of the Right to Know Law govern the interpretation of OPRA’s criminal investigatory exemption (see this Appellate Division opinion), it is not clear that N.J.S.A. 52:17B-88 is intended to mandate the disclosure of autopsy reports to anyone filing a public records request. The statute could be understood as requiring release only to the decedent’s close relatives, and applying the criminal investigatory record exemption to any other requestor.

This argument apparently was not presented to the GRC. It will be interesting to see if the GRC or a court is asked to address this issue in a future case.

What Does OPRA’s “Immediate Access” Requirement Mean?

One of OPRA’s more confusing requirements is that a custodian “ordinarily shall” grant “immediate access” to certain records, such as bills, contracts and employee salary information. The statute doesn’t define the meaning of the vague terms “ordinarily” and “immediate,” and the courts have not interpreted this language. As a result, it’s not clear exactly how quickly a custodian must respond to a request covered by the immediate access provision.

The GRC also has not clearly defined the immediate access requirement. In the FAQ section on its website, the GRC says the phrase means “at once, without delay,” unless  there is a legitimate reason for delay, such as that the records are in use, in storage, or involve conversion to another medium.

Unfortunately, the “at once” standard is ambiguous and unrealistic. For example, it implies that the custodian must respond at the very the moment he sees a request for a bill. But as a practical matter this is impossible; the custodian needs time to figure out where the bill is located, obtain a copy, review it for potential confidential material and then prepare the document for sending to the requestor. And of course it is likely that at the same time, the custodian would be working on other matters with deadlines. Under these typical circumstances, it may take a diligent custodian a day or two to send out the requested bill. Would the GRC say this custodian violated OPRA?

The GRC’s cases do not answer this question. However, the GRC’s decisions show it takes a hard line on the immediate access provision. A recent decision illustrates this. In Giambri v. Sterling H.S. Dist. (#2014-394), the request sought contracts  and salary information of 6 employees, as well as many other records. The custodian asked for an extension of time to respond to the entire request on the 5th business day after receipt of the request. The GRC stated that the custodian violated OPRA by failing to respond immediately to the contract and salary portions of the request. It noted that it had previously determined that responding on the 4th business day is a violation.

The record before the GRC showed that during the same time frame the custodian was dealing with numerous other OPRA requests submitted by Giambri. Although having to deal with the other requests presumably affected the custodian’s ability to respond quickly to the request in issue, the GRC did not mention this factor in holding that the custodian failed to comply with the immediate access requirement.

As noted above, no court has spoken on the immediate access requirement. Custodians should be aware of the GRC’s strict approach when a request for an “immediate access” record is received.


Appellate Division Opinion On Disclosure of Open Public Meeting Agenda Documents

In a published opinion issued earlier this week, Opderbeck v. Midland Park Bd. of Ed., the Appellate Division held that the agenda of open meetings provided to the public by public bodies does not have to include release of the documents referred to in the agenda. Although the court was interpreting the requirements of the Open Public Meetings Act (OPMA), its opinion also has relevance under OPRA.

The appeal challenged a trial court injunction which required the Midland Park Board of Education to post on its website not just the agenda for its public meetings, as required by the OPMA, but also all of the documents and attachments referenced in the agenda. The order exempted from the publication requirement any documents the Board believed to be confidential under OPRA.

The court held that the OPMA did not authorize this order. It concluded that the OPMA only mandates the advance disclosure of meeting agendas, and does not impose a legal obligation to include the documents mentioned in the agendas in this disclosure.

The Appellate Division added that OPRA also does not require the posting of agenda documents. The court did not give a detailed explanation in this regard, but its point is clear: in the absence of a specific OPRA request, a public body is not legally obligated to release documents that are in its possession. The trial judge’s opinion ignored this basic principle, in mandating that the Board automatically post all non-exempt documents together with the agendas.

Why Doesn’t The GRC Have A Deadline For Filing Complaints?

Unlike other state agencies, the GRC does not require complaints to be brought to it within a specified time frame. A requestor must file suit with a court within 45 days of the custodian’s decision, but there is no deadline at all for filing a complaint with the GRC.

Why is there no deadline? In a recent interim decision, Paff v. Harrison Twp. Fire Dist., the GRC explained that it does not have the legal authority to impose one. It stated that because OPRA does not contain a statute of limitations for filing complaints with the GRC, the agency lacks the power to establish such a requirement.

In my opinion, the GRC’s reasoning is incorrect. Administrative agencies have the inherent power to adopt procedural rules to enable them to carry out their statutory responsibilities. This means that an agency may set a reasonable deadline for the filing of complaints, where the Legislature has not mandated a specific deadline. For example, the Civil Service Act establishes a statute of limitations only for appeals to the Civil Service Commission of major disciplinary actions. The Commission’s rules set deadlines for filing administrative appeals regarding the many other types of disputes heard by this agency.

Similarly, the GRC could require that requestors file complaints within a reasonable time frame after receiving the custodian’s decision. Adoption of such a deadline would be consistent with the Supreme Court’s statement that OPRA requires the swift resolution of public record disputes.

GRC: Text Messages Are Government Records

In New Jersey, as well as in most states across the country, it is not clear whether public officials’ text messages are subject to freedom of information laws. Recently, the GRC issued one of the few decisions in the nation on this significant issue, and the first rendered in New Jersey. The GRC stated that text messages are government records under OPRA.

In Verry v. Franklin Fire Dist. 1 (#2014-387), the requestor asked for certain text messages of various officials and employees from their government-issued cell phones. The custodian denied the request on the ground that there were no responsive records; the individuals either no longer had the cell phone from the period covered by the request, or their phones did not have the ability to save texts.

Although the GRC ultimately affirmed the denial because the agency did not have the requested records, it nevertheless decided to “provide a definitive holding” on the issue of whether text messages are covered by OPRA. It determined that texts fall under the statute’s definition of a “government record,” as they are information that is stored or maintained electronically. The GRC said that texts are “fundamentally similar” to emails, because they are electronic communications.

The GRC’s brief analysis, while straightforward, does not fully deal with the questions that come up with regard to text messages under OPRA. For example, why doesn’t the case law holding that public employee telephone records are confidential (see this post) apply to cell phone text messages?

The impact of the GRC’s ruling is not clear. The GRC acknowledged that its decision does not require text messages to be retained by public employees. As a practical matter, as demonstrated by the Verry case, text messages usually won’t be saved, so in most cases there will be no records to provide.

However, the GRC’s decision is important because it suggests that future requests for text messages should not simply be denied on the ground that they do not involve a government record. Instead, under this decision, custodians will have to conduct a search to see if any text messages exist.

Court Upholds Confidentiality Of Travel Expenses Of Governor’s Security Detail

I have previously reported on a lawsuit challenging the denial by the Governor’s Office of an OPRA request for the credit card statements that show the specific charges made by the State Police officers who protect the Governor during his trips. The trial judge recently ruled that the expense details must be kept confidential, because disclosing them would compromise the ability of the State Police to protect the Governor and other officials.

The judge based her decision on a certification by the head of the State Police’s Executive Protection Unit, which explained that the Governor would be at risk if the expense information. were to be released. The judge looked at this evidence in camera, in accordance with the settled law, recently reaffirmed by the Appellate Division in the Lyndhurst opinion, that in OPRA cases sensitive law enforcement information should be submitted ex parte for the court’s confidential review.

It appears that the judge did not issue a written opinion in this matter. Despite the absence of an opinion, the ruling nevertheless is significant, because it upheld the State Police’s longstanding position–which has existed since OPRA was enacted– that detailed trooper travel expense information cannot be disclosed.


Summaries of GRC Decisions Issued In August 2015

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 July (see here for summaries of the decisions issued at previous meetings).

-Carroll v. Trenton School Dist.: Custodian’s failure to respond properly to the request was not a knowing and willful violation.

-Dunleavy v. Jefferson Twp. Bd. of Ed.: (1) Custodian’s untimely response was not a knowing and willful violation; (2) One part of the OPRA request, asking whether a particular individual was employed, was an invalid information request.

-Barry v. NJ Transit: Custodian’s untimely response was not a knowing and willful violation.

-Moss v. Newark Zoning Bd.: Custodian lawfully denied the request because the requested records did not exist.

-Caggiano v. Governor’s Office: Custodian properly denied a request for all emails sent to the Governor’s Office by the requestor.

-Demitroff v. Buena Vista Fire Dist. No. 1: Custodian properly denied the request because the document requested was that of a private firm and was not in the agency’s possession.

-Alexander v. NJDOC: Custodian’s failure to provide the requested full name of an employee was not a knowing and willful violation.

-Verry v. Franklin Fire Dist. No. 1: (1) A resolution for no-bid professional services is not subject to OPRA’s “immediate access” provision; (2) Parts of the request were invalid because they did not specify a time frame for the correspondence sought; (3) Requestor was not entitled to attorney fees under the catalyst approach, even though records were released to him after the filing of the GRC complaint, because he filed the complaint without giving the custodian time to respond to his demand for additional records.

-Kimpton v. NJDOC: Custodian properly denied the request under the security exemption.

-Musgrave v. NJ State Police: There was no unlawful denial, as the request was properly denied under the law existing at the time of the request, and the records were subsequently released.

-Muata v. NJDOC: Denial of the request was upheld because no responsive records existed.

-Garcia v. NJDOC: Custodian properly denied the request as an invalid research request.

-Verry v. Franklin Fire Dist. No. 1 (#2014-387): The request for text messages was properly denied because no responsive records existed.

-Schultz v. NJ State Police: (1) a portion of the request, seeking all documents related to a certain investigation ,was properly denied as overbroad; (2) Autopsy reports are not criminal investigatory records and therefore must be disclosed; (3) Other reports and records were properly withheld as criminal investigatory records.

-Giambri v. Sterling H.S. Dist. (#2014-394): Custodian’s failure to provide immediate access to certain contracts and salary information was not a knowing and willful violation.

-Giambri v. Sterling H.S. Dist. (#2014-397): The request was properly denied as overly broad and requiring research.

-Gartner v. Middlesex Boro: Custodian’s belated disclosure of executive session minutes was not a knowing and willful violation.

-Scheeler v. NJDOE (#2015-16,17): Custodian’s insufficient response to the request was not a knowing and willful violation.

-Scheeler v. NJDOE (#2015-19): Custodian properly requested an extension of time to respond to the request.

Requestor Who Obtained No Records Awarded Attorney Fees

To assist agencies in evaluating the potential cost of a records dispute, this blog regularly reports on court-ordered attorney fee awards under OPRA.

An Ocean County trial judge recently awarded approximately $10,000 in attorney fees to an OPRA plaintiff who had sued Stafford Township. The judge granted counsel an hourly rate of $300. This rate is in line with the usual amount for OPRA cases, as discussed here, although judges have awarded much higher rates in some matters.

The odd aspect of the Stafford case is that the plaintiff received attorney fees for prevailing in the litigation, despite the fact that the Township did not release any records to him. The judge determined that plaintiff had prevailed because he had obtained a court order directing the Township to produce a Vaughn index identifying what records existed and any claimed exemptions for the records. In response to this order, the Township provided a certification that no responsive records existed.

The whole point of an OPRA request is to obtain access to government records. A Vaughn index is simply a means to enable a plaintiff to advocate to the court his position that the government records he requested should be released to him. Where a plaintiff ultimately does not succeed in gaining the release of any records, he has not won his OPRA case and should not be eligible for an attorney fee award.

Alternatively, in this type of situation it can be argued that the plaintiff should receive a substantially reduced attorney fee award. Under New Jersey law, an OPRA fee award to a prevailing plaintiff may be reduced due to the plaintiff’s limited success in obtaining government records. For example, in this unpublished Appellate Division opinion, the court awarded only $500, to reflect the fact that all but a handful of the challenged redactions were upheld.


Home Addresses Under OPRA: An Unsettled Question

Does OPRA require disclosure of individuals’ home addresses in the possession of a public body? Surprisingly, there is no precedential New Jersey case law that answers this question.

I was reminded of this as I read a recent Appellate Division opinion which did not even involve any OPRA issues. In this opinion, the court considered the enforceability of a Hoboken affordable housing ordinance.  A resolution adopted by the zoning board, which referenced a colloquy at the board meeting between a “resident” and representatives of a developer concerning the affordable housing obligation, was critical to the court’s decision. In discussing the resolution’s description of the resident’s statements, the Appellate Division said that although the resolution contained the name and address of the resident, the court “opted not to include this information in the opinion to protect the person’s privacy.”

The zoning board’s resolution is certainly a public document; yet the court made a point of withholding a name and address shown within this document on the basis of privacy.

Ironically, the Appellate Division is not always as protective of the privacy of home addresses in reviewing OPRA cases.  For example, in Bolkin v. Fair Lawn, it required the disclosure of the names and addresses of residents holding dog and cat licenses. Other court opinions, as well as several GRC decisions, have reached varying conclusions as to whether home addresses must be released under OPRA. There is no uniformity in the decisions because any case involving home addresses invokes OPRA’s privacy provision, which requires (per the Supreme Court) a fact-sensitive balance of various criteria to determine whether the need for disclosure outweighs the individual’s privacy interest.

In addition to being fact-specific, the Appellate Division rulings on OPRA and addresses are not published opinions. As a result, there is no judicial precedent providing guidance to custodians on the issue. As with OPRA requests for police body camera recordings, another situation involving privacy interests, custodians cannot rely on case law to assist them in making the difficult call as to whether to release a home address.