Monthly Archives: September 2015

Case Law Lacking On Higher Education OPRA Issues

OPRA has several exemptions that apply exclusively to higher education institutions, involving records concerning academic research, examinations, charitable donations and individual admission applications, as well as information regarding student records. Surprisingly, there is no case law dealing with any of these exemptions.

The GRC has occasionally issued decisions on the higher education exemptions. See, e.g., White v. William Paterson U. (2008-216) (audio tape of a student disciplinary hearing was properly redacted); Rosenbaum v. Rutgers (2002-91) (survey responses were exempt as academic research). But there are no court opinions providing precedential guidance on these sections of OPRA.

This occurred to me as I read the recent report on Rutgers football coach Kyle Flood’s attempt to get a professor to change the grade of a player on the team. The report contains Flood’s initial email to the professor, which discusses the request for a grade change and encloses a letter from the student concerning his behavior during the semester.

Flood sent the email through personal email accounts “to ensure there will be no public vetting of the correspondence.” The report explains that he did this to avoid an OPRA request. Apparently, Flood was not aware that an email by a public employee discussing a work matter is subject to OPRA, regardless of whether it was sent through a personal account or the public employer’s account.

The more important question for higher education institutions is whether, under OPRA, Flood’s email to the professor should be considered confidential under OPRA’s exemption for “information concerning student records…to the extent disclosure would reveal the identity of the student.” It is not clear whether the email constitutes information concerning student records, although it would seem that a discussion of a student’s performance in a course should meet this definition.

It’s also possible that the student’s identity would be revealed by disclosure of this type of email. Although this is a moot point in this matter, because the student in question has been identified in media reports, a college confronted with a similar OPRA request would have to make a delicate judgment as to whether disclosure might reveal the subject student’s identity.

The problem, as noted above, is that there is no case law interpreting the scope of OPRA’s exemption for student records, as well as the other exemptions that apply only to higher education institutions.


GRC’s Acceptance Of Anonymous Complaints Is At Odds With New Appellate Division Opinion

The Appellate Division recently held, in A.A. v. Gramiccioni, that OPRA plaintiffs may not file anonymous court complaints. Although this opinion only dealt with OPRA cases filed in the Superior Court, the Appellate Division’s reasoning suggests that the GRC’s longstanding practice of accepting anonymous complaints is legally deficient.

The GRC’s website shows that it has handled about 10 complaints over the past several years filed by “Anonymous.” There’s no indication that any party in these cases raised the issue of whether it is appropriate to allow a complainant to proceed anonymously.

In A.A. the Appellate Division upheld dismissal of the anonymous complaint on the basis that the plaintiff did not file an order to show cause and verified complaint, as required by court rules for OPRA actions. An anonymous plaintiff, of course, cannot verify the complaint, because a verification requires an affidavit sworn to by the plaintiff.

The same problem exists in GRC cases. The GRC mandates that all complainants verify their complaints. Section 6 of the GRC’s required complaint, entitled “Verification of Complaint,” requires the complainant to affirm various statements, including that the information in the complaint is “true to the best of my knowledge and belief,” and then provide his or her signature.  But as determined by the court in A.A., an anonymous requestor cannot provide such verification.

The court also noted other reasons why litigants must reveal their identities, such as for purposes of ensuring that the claim in question has not already been litigated by the plaintiff, and for checking whether an attorney has a conflict of interest. These issues can come up in a GRC case as well.

In fact, OPRA expressly prohibits requestors from filing the same denial of access complaint in both the GRC and the court. If a GRC complainant is completely anonymous, there’s no way to know whether he or she is simultaneously pursuing the same claim in the Superior Court.

These issues show that the GRC needs to review its procedures and promulgate new rules concerning complainants who seek to be anonymous.



OPRA’s Exemption For Officials’ Calendars

This recent Jersey Journal article discusses Jersey City’s denial of the Journal’s request for copies of Mayor Fulop’s private meetings calendar. Although the article suggests there is no legal justification for this denial, New Jersey case law directly states that the appointment calendars of public officials are exempt from disclosure under OPRA.

In a published 2005 opinion, Gannett New Jersey Partners v. County of Middlesex, the Appellate Division upheld the County’s denial of an OPRA request for County Counsel’s appointment book. The court stated that a Supreme Court opinion barring the public release of telephone numbers called by an official applies as well to the meeting information contained in an official’s appointment book.

As a result, New Jersey law is clear: OPRA does not permit the disclosure of public officials’ private calendars.

OPRA And The Privacy Of Internal Affairs Files

This recent article reports on a new OPRA suit filed against the State Police, in which the plaintiff seeks records of that agency’s internal affairs investigation into whether an unidentified trooper, to quote the article, “offered to toss an arrest warrant in exchange for sex.” This suit highlights a longstanding problem: the incorrect claim often made by requestors that OPRA permits them to obtain disclosure of a public employee’s personnel records.

The law is clear that OPRA’s personnel records exemption prohibits the disclosure of the records of an investigation by a public agency, such as an internal affairs inquiry, into whether one of its employees committed misconduct. For this reason, under both New Jersey law and the federal FOIA, the name of an employee who has been disciplined as a result of such investigation is confidential.

The Appellate Division recently confirmed that police internal affairs files are personnel records. In a case dealing with a discovery demand for Rutgers Police Department internal affairs records, Padilla v. Rutgers, the court said that these are personnel files, and emphasized that settled law recognizes the strong public interest in the confidentiality of these records.

As I have previously discussed, see this post, the Appellate Division is currently considering an appeal that presents the issue of whether OPRA’s personnel exemption applies to police internal affairs records. The court needs to resolve this issue and make clear that OPRA does not allow requestors to invade the privacy interest that New Jersey public employees have in their personnel records.

Appellate Division: OPRA Plaintiffs May Not File Anonymous Court Complaints

In a case of first impression, the Appellate Division held today that neither OPRA nor any other law authorizes an OPRA requestor to file an anonymous court complaint. A.A. v. Gramiccioni.

“A.A.” submitted an anonymous OPRA request, as permitted by the statute, to the Monmouth County Prosecutor’s Office. After the request was denied, he filed a complaint in Superior Court, continuing to call himself A.A. and claiming the right to proceed in court without revealing his identity. (I refer to A.A. as “he” for ease of writing; I don’t know if A.A. is male or female).

The appellate court said that the controlling principle is that a litigant in a court proceeding must reveal his or her identity, in the absence of statutory or court rule authorization, or a compelling reason. No  court rule permits anonymous OPRA complaints, and the court concluded that OPRA also does not grant such authorization. The court noted that unlike the statutes that expressly permit litigants to be anonymous, such as in actions involving child sexual abuse victims, OPRA does not provide that right to requestors.

The Appellate Division observed that in the absence of statutory authorization, a litigant must show that there is good cause for shielding his or her identity. The court said that the plaintiff here had shown no reason, let alone good cause, for exempting him from the basic principle that litigants may not be anonymous.

In addition to establishing the precedent that OPRA does not authorize anonymous court filings, the opinion contains another important ruling. The trial judge had dismissed plaintiff’s action on the basis that plaintiff did not file an order to show cause and verified complaint. An anonymous plaintiff, of course, cannot verify the complaint, because a verification requires an affidavit sworn to by the plaintiff.

The Appellate Division agreed that this defect requires dismissal of an OPRA complaint. The court reaffirmed the principle that an OPRA complaint must be filed in accordance with the summary action requirements of the court rules.

This is the first time that the Appellate Division has stated specifically that the absence of a verification mandates dismissal of an OPRA complaint. This ruling may ultimately prove to be highly significant, by putting requestors on notice that OPRA court actions will be dismissed if they do not include a properly verified complaint.

Appellate Division To Issue Major OPRA Opinion Tomorrow

The Appellate Division’s web site says that tomorrow, September 17, 2015, the court will issue a published opinion in A.A. v.  Gramiccioni, et al. This case deals with an issue of first impression in New Jersey: whether an OPRA requestor may file a lawsuit anonymously to challenge the denial of the OPRA request.

Although OPRA permits requests to be made anonymously, the Rules of Court require litigants to disclose their identity in court filings. OPRA does not state that a requestor is exempt from the usual rule that litigants in judicial proceedings may not proceed anonymously. The A.A. opinion will be the first ruling issued by a New Jersey appellate court on whether OPRA authorizes a litigant to shield his or her identity in court.


The Overlooked Problem Of The Cost Of OPRA

This article reports that the Clifton Board of Education spent around $7000 over 2 months for 47 hours of work by a law firm on OPRA requests. This is a reminder of a problem that’s rarely discussed–it’s expensive for public bodies to comply with OPRA.

The article says that the law firm billed the Board for tasks such as analyzing OPRA requests and reviewing and redacting documents. Public bodies clearly need such legal services. As this blog has shown, so many OPRA requests raise difficult legal issues or present the risk of litigation. If anything, the amount of legal work cited here, approximately 23 hours per month, seems low. Larger public entities undoubtedly generate much more OPRA legal work on a daily basis.

Charges for legal services are just one of the costs of OPRA compliance. There are many other significant expenses that must be borne by the public body. Many agencies employ one or more individuals to serve exclusively as records custodians. OPRA litigation costs can be substantial, particularly where the public body must also pay the requestor’s attorney fees. And there is a major cost, in terms of the efficient provision of government services, when public employees must put aside their normal job duties while they spend time locating and reviewing records that may be responsive to an OPRA request.

This report by the New Jersey Department of Environmental Protection illustrates how expensive OPRA can be for large agencies. The report shows that, due to the large volume of requests, DEP has a separate office, with a 12-member staff, dedicated to OPRA requests. The report also says that DEP’s yearly costs of processing OPRA requests have been around $3 million.



A Useful New Appellate Division Opinion On Overbroad Requests

The Appellate Division issued an opinion today, Shipyard Associates v. Hoboken, which upheld the denial of an OPRA request as overly broad. Although the opinion is not precedential, it provides a helpful summary of how to analyze the often difficult question of whether a request asks for specific records or instead is an invalid demand for research.

In Shipyard, the requestor submitted three requests, all seeking information about certain ordinances. The court said that the first request, which asked for “any and all” documents concerning the ordinances, was invalid as a blanket request. The court determined that another request, for “all documents in the…office’s files concerning [the ordinances],” was deficient for the same reason.

The third request sought:

Copies of all correspondence (including e-mails), transcripts, reports, memos, notes, minutes   prepared by and received by Hoboken employees, Hoboken’s agents, members of Hoboken City Council concerning [the ordinances].

The court viewed this request as being narrower than the others, but still not specific enough. It concluded that the request was invalid because it didn’t identify any Hoboken employees or agents with regard to correspondence, and contained no identifiers other than generic terms such as “reports” and “notes.” The court characterized this request as an open-ended demand which improperly required the custodian to search through all files and analyze them in order to identify the relevant records.

As noted above, the opinion is not precedential, so the court’s specific rulings with regard to the three requests are not binding in other cases. The value of this opinion for public bodies is that it contains a cogent description of the law governing what constitutes an invalid OPRA request. The court succinctly summarized the key cases on overly-broad requests and clearly explained the reasoning in each case. This summary will be a useful resource for custodians, particularly because requestors constantly submit extremely broad requests.

There is one troubling aspect of the court’s opinion: it remanded the requestor’s common law claim for consideration, because the trial judge had not addressed it. The Appellate Division stated, without explanation, that a request that is overly broad under OPRA may still present a common law claim for disclosure of the records. I think this is incorrect. If a request fails to identify the records sought, it necessarily follows that the common law balancing test–which requires an analysis of the specific records requested– cannot be performed.