Monthly Archives: March 2016

The Cost To The Public Of Unsuccessful OPRA Lawsuits Brought By Requestors

Recent articles, such as this one, have reported on the statistic that the State has paid around $1 million over the past four years in plaintiffs’ attorney fees, for OPRA lawsuits that have been either lost or settled by the State. The premise of these articles is that the government’s improper withholding of records costs the State’s taxpayers a lot of money. Unfortunately, these articles don’t report on the other side of the coin–the many cases where requestors have litigated and lost their OPRA claims.

In my experience, the State and other public bodies win far more OPRA cases than they lose. This means that taxpayers are paying much more for requestors’ unsuccessful litigation: in all of these cases, public bodies must pay for attorneys to respond to the incorrect OPRA claims made by requestors.

A recent Appellate Division OPRA opinion demonstrates this point. Signature Information Solutions v. Jersey City MUA, did not involve the withholding of records; the public body provided a report to the requestor that satisfied the request. Nor was this a case where the press or a citizen sought records to learn about a governmental issue; instead, the requestor was a for-profit company that sought data so that it could sell this public information to others. The case was simply about the requestor’s claim for attorney fees, based on its argument that it had prevailed in the litigation.

The court firmly rejected this claim, holding that the requestor could not recover attorney fees because its request was invalid, and the public body did not improperly deny access to records.

Thus, the MUA–which did not violate OPRA–had to pay its own attorneys a presumably significant amount to defend it, not just in the trial court, but also on appeal.

This is just one example of the common situation where taxpayers have to bear the costs of OPRA requestors’ unsuccessful litigation.

Appellate Division Issues Important Opinion: FEMA Claim Information Is Confidential Under OPRA

Om March 14, the Appellate Division issued an opinion, O’Boyle v. Boro of Longport, upholding the confidentiality of information concerning properties that have made FEMA claims for flood damage. This type of information is often sought under OPRA, in view of issues concerning, for example, damage from Hurricane Sandy and other storms, but the Appellate Division has never before resolved whether OPRA requires disclosure of FEMA-claim records held by state and local agencies.

The request in this case asked for the addresses, amounts of losses and dates of losses for properties in Longport that had made certain claims under FEMA’s National Flood Insurance Program. The court determined that disclosure of this information by public bodies is prohibited by federal regulations governing FEMA records. The court therefore held that the records are confidential under OPRA’s exemption for records exempted by federal law.

The appellate court also agreed with the trial court’s conclusion that the requested information is protected as well by an individual’s expectation of privacy.

This is a very significant opinion. As noted, although requests for this type of FEMA information often come up, there have been no court cases addressing whether these records are disclosable under OPRA. It’s helpful to have an Appellate Division opinion that deals with this issue. Hopefully, the Appellate Division will eventually recognize the importance of the O’Boyle opinion and reissue it as a published opinion, rendering it precedential for future cases.


Settlement Resolves A Significant OPRA Appeal

Raritan Borough has settled its appeal of an OPRA case, Gannett v. Raritan Borough, by agreeing to pay $650,000.

This means that the court will not issue an opinion in what was one of the most important pending OPRA cases. The appeal involved several novel, significant 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.

An appellate court opinion also would have established precedent governing how attorney fee awards should be calculated under OPRA. The $650,000 settlement represents, by far, the largest attorney fee amount paid by a public body to a prevailing OPRA requestor. While the case is not precedential, it does serve as a warning that some OPRA matters can generate extremely high attorney fee liability for public bodies.

Summaries of GRC Decisions, February 2016 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.

Shapiro v. City of Newark–The City correctly denied the request as invalid because it sought all documents concerning several topics. Although City employees failed to timely forward the OPRA request to the custodian, the evidence did not show who was at fault.

Garcia v. NJ Public Defender–The request was properly denied because it asked for Public Defender case file records, which are exempt.

Spillane v. NJDOC–The request was correctly denied because the records are exempt under regulations of the NJDOC.

Avila v. NJ Parole Bd.–Records related to executive clemency petitions are exempt under Executive Order 9 (1963).

Avila v. NJDOC–The request was properly denied because the agency had no responsive records.

Muata v. NJ Div. on Civil Rights–The request was properly denied because the agency had no responsive records.

Rodriguez v. Kean U.–The custodian violated OPRA by not immediately responding to the portion of the request seeking vouchers and invoices; the first response to the request came on the 8th business day after receipt. However, there was no knowing and willful violation, or denial of access, because the records were eventually provided.

Scheeler v. NJ DOE–The complaint was dismissed because it was filed before expiration of the extension period for responding to the request.

Rizzo v. Middlesex Prosecutor–The requested records were exempt criminal investigatory records. In addition, the agency’s mistaken previous disclosure of these records, during an inspection, did not preclude the subsequent denial of access on the basis that these records are exempt.

Drukerhoff v. NJ Parole Bd.–The request was properly denied because parole hearing records are exempt.

Supreme Court Committee: Court Rules Will Not Be Changed To Permit Anonymous OPRA Complaints

The Supreme Court’s Civil Practice Committee has rejected a proposal that New Jersey’s court rules be amended to permit plaintiffs to file anonymous OPRA complaints. See p. 116 of the 2016 Committee Report.

The proposal that the court rules authorize anonymous OPRA complaints, made by an individual identified only as a non-attorney involved in several OPRA cases, was based on the fact that OPRA allows anonymous requests to be submitted. The “vast majority” of the Committee rejected the requested rule change. This decision was based on the Appellate Division’s 2015 opinion in A.A. v. Gramiccioni, where the court held that there is no reason to permit OPRA plaintiffs to prosecute litigation anonymously.

The Committee’s action puts to rest any possibility that anonymous OPRA court complaints may be filed. The GRC does accept anonymous complaints, even though, as I’ve discussed, this policy is contrary to law.