Monthly Archives: January 2016

May Only A New Jersey Citizen Make An OPRA Request?

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This article says there are currently two pending trial court cases in which public bodies are claiming that the OPRA request must be denied because the requestor is not a citizen of New Jersey. This defense is rarely raised in OPRA cases, probably because winning this argument will provide little benefit to public bodies.

The problem is that even if a court were to agree that non-citizens are not allowed to make OPRA requests, this would not prevent such requests. A non-citizen could get around the prohibition by submitting an anonymous request, as permitted by the statute, or by having a New Jersey citizen make the request for him. In short, the prohibition would be largely unenforceable.

Aside from this practical problem, the legal argument that non-citizens are barred from making OPRA requests strikes me as unlikely to succeed. Construing the statute as limited to citizens would mean that many of the news companies that regularly cover New Jersey affairs–such as the Philadelphia Inquirer, the New York Times and Philadelphia and New York TV stations–are prohibited from submitting OPRA requests. I doubt that the Legislature intended this result.

The statute’s language does not clearly  say that non-citizens are barred from using OPRA to obtain records. The sections of OPRA that deal with requests and their denial refer to “persons” making the requests, not “citizens,” N.J.S.A. 47:1A-5 and -6. The citizenship argument is based on a single sentence in OPRA, which declares it to be New Jersey’s policy that government records “shall be readily accessible for inspection, copying, or examination by the citizens of this State.” However, this sentence does not say that an OPRA request may only be made by a State citizen.

In any event, as noted, a public body has little to gain, as a practical matter, from attempting to persuade a court to construe OPRA as forbidding requests from non-citizens.

 

 

 

 

 

Trial Court Issues Precedential Opinion On Confidentiality of Student Records Under OPRA

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A trial court recently issued a published opinion, C.G. v. Winslow Tp. Bd. of Ed., which provides valuable guidance on how to apply the student record confidentiality requirements of the Family and Educational Records Privacy Act (“FERPA”) under OPRA.

The OPRA request at issue in C.G. asked the Winslow Township Board of Education for settlements of any claims made on behalf of students over a 5-year period. The Board provided the settlements, with redactions of the parents’ and students’ initials shown in the documents, as well as the case docket numbers. The redactions were based on FERPA’s mandate that “personally identifiable information” within educational records concerning students must be kept confidential.

The requestors argued that initials and docket numbers are not confidential, but the court held that the Board properly redacted this information in accordance with FERPA. This statute prohibits disclosure of personally identifiable information of students, which includes information that “alone or in combination…would allow a reasonable person in the school community…to identify the student with reasonable certainty.” The judge cogently reasoned that obtaining either the initials of students and parents involved in a case, or the case docket numbers, would enable a person, in conjunction with other publicly available information, to figure out the identity of particular students.

Trial court opinions are rarely published. The publication of the C.G. opinion indicates that the Judiciary recognized that precedent was needed to resolve the unsettled issue of redacting potential identifying information in student records, which various school districts have had to litigate with OPRA requestors. In addition, the opinion will be helpful to higher education institutions, which are also subject to FERPA and, as I’ve previously discussed, have not had the benefit of any OPRA case law with regard to their obligation to withhold information that would reveal a student’s identity.

 

 

Lessons From A Dolphin Autopsy OPRA Request

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The N.J. Department of Agriculture was the object of much derision recently for denying an OPRA request for a dolphin autopsy report on the basis of the exemption for information related to a medical diagnosis or evaluation–in other words, stating that it was protecting an animal’s expectation of privacy. The State subsequently released the report, saying the OPRA denial had been incorrect.

Why is this silly situation of interest to all records custodians? Because it provides a reminder of what a custodian should do when confronted with a request for a record that a third party claims is confidential.

In the dolphin case, the Department performed the autopsy report under an agreement with an organization called the Marine Mammal Stranding Center, which asked the Department not to release its findings publicly. It’s fair to assume that the custodian was attempting to accommodate the Center’s interest in confidentiality when he initially denied the OPRA request.

Public bodies often receive requests for records in which third parties may claim a confidentiality interest. When this occurs, and there is no other applicable OPRA exemption, the custodian should not simply deny the request. Instead, the custodian should notify the third party of the OPRA request, and give it the opportunity to initiate legal action to preclude potential release of the record in question.

This procedure appropriately places the burden on the party with the actual interest in preventing disclosure of the record. That party, rather than the public body, should have to articulate to the public why it believes a record in the possession of the government should not be released. And if the requestor disputes the claim of confidentiality, the public body will not need to be actively involved in the litigation between the requestor and the third party.

Trial Court: Resumes of Unsuccessful Job Candidates are Confidential

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Mercer County Assignment Judge Jacobson recently ruled that the City of Trenton properly denied an OPRA request for the resumes of the applicants who were not chosen for the position of chief municipal prosecutor. As discussed in this earlier post, OPRA’s personnel exemption prohibits a public body from releasing the resumes of the individuals who applied for jobs, but were not appointed.

It appears that the judge (as is her usual practice) did not issue a written opinion. The news article indicates that she rejected the argument that Executive Order 26 (2002) imposes upon a public body the obligation to contact the candidates to find out if they consent to disclosure of their resumes. The judge recognized that adding this requirement to the custodian’s duties would be contrary to OPRA.

The judge also disagreed with the plaintiff’s position that the executive order makes resumes public documents, on the ground that an executive order cannot override the statutory requirement that personnel records are confidential.

There is no published court opinion that expressly holds that resumes of unsuccessful job applicants are within OPRA’s personnel exemption, probably because it is so clear that resumes are confidential personnel records. Any doubt on this question is dispelled by the Supreme Court’s opinion in Kovalcik v. Somerset Prosecutor, where the Court held that OPRA permits disclosure of only an extremely limited amount of personnel information.

Interestingly, when I argued this case, some of the justices suggested, during the oral argument, that Executive Order 26 was invalid because it conflicts with OPRA’s personnel exemption. However, the Court’s opinion does not address this. In my view, any requirement that makes resumes public would in be invalid,  as the statute and Kovalcik clearly do not authorize disclosure of these personnel records.

OPRA 2016: Expect Some Landmark Court Opinions

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In 2016, the courts are likely to render several major OPRA opinions dealing with new issues. Most attention, of course, will be on the two OPRA Supreme Court cases, Gilleran and Lyndhurst, which will be argued, and perhaps decided, this year. But there are also several cases that the Appellate Division will be deciding which may have an even greater impact on public bodies’ handling of OPRA requests.

It’s not clear when the Supreme Court will issue its opinions in Lyndhurst and Gilleran. The Court granted review of these cases in November and December 2015, and it usually issues its opinion around 12-16 months after granting review of a case. These cases involve the first time that the Court will consider the scope of OPRA’s exemptions for criminal investigatory records (Lyndhurst)  and for records related to safety and security (Gilleran).

Gilleran raises another important issue that has never been definitively addressed by the New Jersey courts–the interpretation of OPRA’s provisions concerning requests that are burdensome and disruptive. The request in Gilleran sought 14 hours of security camera footage. As explained here, although the Appellate Division described this request as “unreasonably burdensome” and “virtually impossible to accomplish without devoting the time and services of multiple employees,” it did not decide whether the request was invalid for this reason. Hopefully, the Supreme Court will not also disregard the crucial question of whether the law permits such burdensome requests.

Even if the Supreme Court opinions are not issued during 2016, this year will still see extremely significant case law coming from the Appellate Division. Here are some key pending appeals:

–Paff v. Galloway Tp. presents a question that often comes up, but has never been resolved: is a custodian obligated under OPRA to create a new document from information contained in an agency’s database?

-Gannett v. Borough of Raritan involves several novel 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. I expect this case to establish precedent governing how attorney fee awards should be calculated under OPRA.

–North Jersey Media v. Governor’s Office raises an issue that directly affects every public employee who handles OPRA matters–whether trial court judges have the legal authority to impose OPRA’s financial penalties for violations.

-Requestors continue to press for disclosure of information from internal affairs files. Paff v. Bergen County presents the issue of whether the names of officers and complainants shown in police department internal affairs complaints  must be disclosed.