Monthly Archives: December 2015

2015 OPRA Case Law Review

2015 saw a number of noteworthy developments in OPRA case law. The courts and the GRC issued a few hundred OPRA opinions, on a wide range of issues. The following are the most significant opinions that came out in the past year.

The Appellate Division issued two major precedential opinions, Gilleran and Lyndhurst, dealing with OPRA’s law enforcement and security exemptions. Although the Supreme Court is reviewing both of these cases, it’s unlikely the Court will issue its opinions before 2017, making the Appellate Division opinions binding law for at least the next year.

Gilleran v. Bloomfield Tp.: The Appellate Division held that the Township should not have denied a request for recordings from a building surveillance video camera. But the real importance of this opinion is that the court recognized that law enforcement interests typically support the confidentiality of such recordings. Also, as explained here, the court said that requests for these videos may be invalid under OPRA’s “substantially disrupt[ive]” provision.

North Jersey Media v. Lyndhurst: The Appellate Division held that virtually every record connected with a criminal investigation is confidential under OPRA, including police motor vehicle recordings.

Other published appellate opinions:

A.A. v. Gramiccioni: The Appellate Division held, for the first time, that neither OPRA nor any other law authorizes an OPRA requestor to file an anonymous court complaint. The opinion also contains an analysis of the requirement that OPRA complaints must be verified in accordance with court rules.

Lagerkvist v. Office of the Governor: This is the Appellate Division’s most recent explanation of what constitutes an invalid research request. In addition, for the first time, the court expressly held that OPRA does not require a records custodian to work with the requestor to turn an invalid request into a proper request that will result in providing the information sought by the requestor.

Matter of the NJ Firemen’s Ass’n Obligation to Provide Relief Applications: In another case of first impression in New Jersey, the Appellate Division held that a custodian may not file a declaratory judgment action against a requestor concerning whether records may be withheld.

In addition to the above published opinions, the Appellate Division issued several unpublished OPRA opinions that are useful and important, even though they are not considered precedential.

-In NJ 2d Amendment Soc. v. State Police, the Appellate Division upheld the validity of 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.

Academy Express v. Rutgers: The appellate court rejected an argument often raised by requestors and ruled that a custodian is not obligated to give a detailed description of the records that are withheld in the response to the OPRA request. In addition, the court stated that an OPRA complaint cannot be brought as part of a complaint asserting non-OPRA claims. It also reaffirmed the rule that a request for all correspondence concerning a topic is invalid.

Shipyard Associates v. Hoboken contains a cogent description of the law governing what constitutes an invalid OPRA request.

The GRC issued two particularly significant decisions.

-In Schultz v. State Police, the GRC determined that autopsy reports are not covered by OPRA’s exemption for criminal investigatory records. This question has never been addressed by the New Jersey courts.

-The GRC also decided another issue yet to be addressed by the courts–whether OPRA covers text messages. As discussed here, it determined that texts fall under the statute’s definition of a “government record,” as information that is stored or maintained electronically. The GRC said that texts are “fundamentally similar” to emails, because they are electronic communications.

Summaries of GRC Decisions, December 2015 Meeting

This blog regularly summarizes the final decisions issued by the GRC at its meetings. The following are the final decisions issued at the GRC’s most recent meeting. For summaries of decisions from prior meetings, see here.

-Walker v. City of Newark–there was no denial of access because the requested record did not exist.

-Caldwell v. East Brunswick–the complaint was dismissed because the complainant was neither the requestor nor the representative of the requestor.

-Long v. NJ Dept. of Corrections–there was no denial of access because the requested record did not exist.

Vandy v. Newfield Police Dept.–the OPRA request was invalid because it requested information rather than specific records.

-Murphy v. NJDEP–the custodian’s failure to respond sufficiently to the request was not a knowing and willful violation.

Court Confirms That An OPRA Custodian Is Not A Reference Librarian

In its recent opinion in Lagerkvist v. Office of the Governor, the Appellate Division rejected the notion that a records custodian is required to work with the requestor to turn an invalid request into a proper request that will result in providing the information sought by the requestor.

The courts have long held that OPRA does not permit overbroad requests that require the custodian to perform research. The request in Lagerkvist was denied for this reason. On appeal, the requestor argued that if the custodian rejects a request as overbroad, the statute obligates him to work with the requestor to refashion the request into one that properly asks for specific, identifiable records. Under this interpretation of OPRA, the task of a custodian is to be like a reference librarian, and make suggestions that will aid a requestor’s research project.

The Appellate Division firmly rejected this position. The court stated that OPRA contains no such requirement. The statute spells out the custodian’s duties in N.J.S.A. 47:1A-5g, and nothing there indicates that the custodian must assist the requestor with his research. The statute limits the custodian’s duties to finding and releasing the specific records requested. Quoting a 2014 Appellate Division opinion, the court emphasized that there is “no legal basis to expand the custodian’s role beyond what the Legislature specifically described in N.J.S.A. 47:1A-5g.”

The court’s refusal to add a new duty to the custodian’s obligations is crucial, in view of the heavy workload already shouldered by custodians in dealing with the high volume of valid OPRA requests.


Appellate Division: A Public Body May Not File A Declaratory Judgment OPRA Lawsuit

For the second day in a row, the Appellate Division has issued a published opinion on OPRA issues. Matter of the NJ Firemen’s Ass’n Obligation to Provide Relief Applications. However, unlike yesterday’s important opinion in Lagerkvist v. Office of the Governor, today’s case will not have a significant impact on most public agencies and custodians.

In Firemens’s Ass’n, the court held that a custodian may not file a declaratory judgment action against a requestor concerning whether records may be withheld. The court determined that “the Legislature did not intend for records custodians to bring actions against record requestors to enforce their asserted right to withhold records.”

With regard to the specific records at issue in the case–showing the name of a particular applicant for a financial relief assistance award and the amount awarded–the court held that they should be released under both OPRA and the common law. The court applied the balancing test required by OPRA’s privacy provision, and concluded that the requestor’s interest in disclosure of the information about one specific applicant outweighed the applicant’s privacy interests.

The court’s determination that these records should be released is unlikely to affect other cases involving privacy arguments. The decision is limited to the specific applicant’s situation, and the court emphasized that it was not requiring disclosure of any of that person’s financial information. This fact-specific holding does not seem applicable to other records.

Similarly, I see the ruling on declaratory judgment actions as having little future impact. Public agencies should have no need to bring a declaratory judgment action under OPRA–if a requestor files a court or GRC complaint, the agency will have a full opportunity to present its arguments as to why it denied the request. In short, the inability to file declaratory judgment suits in OPRA matters will have no practical effect on public bodies.

Appellate Division Issues Published Opinion On How To Deal With An Invalid OPRA Request

The Appellate Division issued a significant opinion today, Lagerkvist v. Office of the Governor.  In just 10 pages, this published opinion deals with several difficult issues that regularly confront OPRA custodians, including how to identify an invalid OPRA request and how a custodian must respond to such a request.

The request in Lagerkvist asked the Governor’s Office for all records of out-of-state travel, since 2012, by the Governor and members of his senior staff to “third-party funded events,” including records of travel arrangements, expenses, schedules, and documents showing the Governor’s or other official’s role in the event. The request also sought all emails regarding the arrangements and events.

The court held that this was an invalid research request. It explained that to satisfy the request, the custodian would have to determine which travel records correlated to the Governor and staff members; attempt to determine which of these were for events funded by third parties; and collect all relevant paper and electronic documents. The court said that doing all this “convert[s] a custodian into a researcher,” which is contrary to OPRA.

The Appellate Division also rejected the requestor’s argument that the Governor’s Office custodian did not respond properly to the invalid request. Lagerkvist complained that the denial letter incorrectly said the request was “unclear.” The court dismissed this argument as irrelevant to the question of whether the request in fact was valid. The court further noted that because the denial letter also cited case law stating that overbroad requests are invalid, the custodian appropriately explained that he was denying the request for this reason.

In addition, the court rejected the argument that the custodian violated OPRA by not replying to an email the requestor sent him in response to the denial letter, which purported to clarify the request. Lagerkvist argued that OPRA imposes a duty upon a custodian to explain “the reasons for denial of access with such specificity that the requestor can modify the inquiry in order to achieve success.” The court disagreed, saying that OPRA requires only that the custodian give a specific basis for the denial of the request, as the custodian did here. Having answered the request, the custodian had no additional duty to work with the requestor to assist him in his effort to obtain records.

This last holding is particularly useful. This is the first precedential opinion to say expressly that the custodian has no legal obligation to explain the basis for denial of the request in a way that will enable the requestor to submit a valid request. While the custodian of course has the discretion to provide such assistance to the requestor, there is no OPRA violation if he chooses not to do so.



Supreme Court To Decide Two OPRA Law Enforcement Records Cases

The Supreme Court has issued several OPRA opinions, but it has never dealt with OPRA’s provisions governing law enforcement records. But now the Court has decided to review two cases involving such records.

The Court announced yesterday that it will review the Lyndhurst case, concerning the scope of OPRA’s exemption for criminal investigatory records. This comes only a few weeks after the Court agreed to hear Gilleran v. Township of Bloomfield, which involves interpretation of OPRA’s exemptions for records related to safety and security.

The importance of these cases can’t be overstated–they affect virtually every law enforcement record, and as a result, will have a substantial impact on law enforcement operations.

I think it’s highly likely that the Court will rule in favor of the public agencies in both cases. Unlike many cases reviewed by the Supreme Court, these matters don’t present a difficult call for the justices, and in fact involve fairly weak arguments by the requestors.

The requestor’s position in Lyndhurst is not supported by either law or logic; it essentially argues that OPRA’s criminal investigatory exemption does not apply to most of the records in a law enforcement agency’s investigatory file. While the Court may determine that some of these records may be subject to release (perhaps under a common law theory), I think the Court will uphold the longstanding rule in New Jersey that provides confidentiality to most of the contents of a criminal investigatory file.

Similarly, in Gilleran, I predict that the Court will rule that OPRA’s safety and security requirements prohibit unfettered public access to building surveillance camera videos. The recent terrorist attacks are reminders of why the legislative intent is to preclude disclosure of this type of security-related material held by public agencies.

Since the Court only recently granted review, opinions in these cases will probably not be issued until at least a year from now.

Supreme Court Grants Review Of Lyndhurst Case

The Supreme Court announced today that it will review the requestor’s appeal in North Jersey Media v. Lyndhurst, in which the Appellate Division determined that almost every record connected with a criminal investigation is confidential under OPRA.

As I’ve previously noted, the Lyndhurst matter is a seminal case. The Supreme Court has never before reviewed OPRA’s exemption for criminal investigatory records.

Press articles about the case (including this one authored by the attorney for the requestor) have focused on one aspect, the holding that police motor vehicle recordings are covered by OPRA’s criminal investigatory records exemption. But it’s important to understand that the case actually involves many other critical law enforcement records, including CAD reports, log book notations, vehicle logs, activity logs, daily statistical sheets, daily bulletins, and all other police reports, such as incident reports, operations reports and investigation reports–in short, all of the records that are routinely part of an investigation.



Privacy Protection Applies To Public Employees Who Are Subjects Of Investigation

Typically, when an investigation of possible government wrongdoing comes to light, newspapers and other requestors use OPRA or the common law to try to find out the names of the public employees under investigation. However, this information is confidential under the law’s protection of privacy.

This was confirmed again in a recent Appellate Division case, discussed here, which granted access under the common law to some records of an investigation into whether county employees had improperly used county equipment. While holding that certain investigatory records had to be released, the court upheld the confidentiality of witness names and similar information, citing the interests of privacy. The opinion does not say whether this holding covers the names of the employees who were investigated, but a subsequent news report makes clear that these names were kept confidential by the court.

This result is consistent with the settled rule that¬† basic principles of privacy prohibit the public release of names of individuals who are investigated, but ultimately not charged with a crime. Similarly, OPRA’s personnel exemption bars disclosure of the identities of public employees (including police) who are being investigated for possible disciplinary infractions.

Unfortunately, despite this clear law, requestors continue to ask custodians and courts to reveal this confidential information.

Once Again, A Court Requires Release Of Criminal Investigatory Records Under The Common Law

Only a few weeks ago, I discussed an Appellate Division opinion ordering disclosure of criminal investigatory records from a closed investigation under the common law right of access, even though the records were held confidential under OPRA. Today the Appellate Division issued a similar ruling in a different case.

This matter involved a request for the records of the Warren Prosecutor’s Office’s investigation into the possible misuse of County-owned equipment by county jail officers. The trial judge upheld the denial of access to these records under OPRA, and the requestor did not appeal this ruling. The trial judge ordered disclosure of some of the records under the common law.

The Appellate Division affirmed the common law decision. Unfortunately, its opinion contains neither a description of most of the records ordered released nor a discussion of why the court determined that the disclosure interest in these records outweighed the confidentiality interest applicable to criminal investigatory records. The Appellate Division simply said that the trial judge properly balanced the competing interests, leaving custodians with no guidance as to how to assess future common law requests for criminal investigative files.

However, the opinion is helpful in showing that the court appreciates that the common law does not override the privacy interests of people involved in criminal investigations. The Appellate Division affirmed the trial court’s order that the names and identifying information of witnesses be redacted. According to the appellate court, this addressed the confidentiality and privacy concerns raised here.

The bottom line: when a common law request is made for records of a closed criminal investigation, a court may order disclosure of some of the records, but probably not those that involve privacy interests or other privileged material.