In November 2015, the Supreme Court granted review in Gilleran v. Bloomfield Tp., to determine whether video recordings from a security camera mounted on a public building are exempt under OPRA. The Court has not yet heard oral argument in the case, so it’s likely that its opinion will not be issued until late 2016 or early 2017.
Meanwhile, OPRA requestors continue to seek disclosure of building security camera footage, and file challenges to the denial of access to these videos. In a recent decision, Jones v. Teaneck (interim decision April 28, 2016), the GRC said that the custodian must prove, at a hearing before an ALJ, that the security camera recording in question there is exempt.
Suprisingly, the GRC did not mention the Gilleran case in this decision. This is particularly troubling because it’s possible that the Supreme Court may hold, in Gilleran, that a public body is not obligated to present specific evidence in support of maintaining the confidentiality of this record in each case. The Court could determine that there is always a strong security interest in the confidentiality of security camera footage, and rule that OPRA’s security exemption bars access to these recordings in all cases.
The GRC should have held the Jones case pending issuance of the Gilleran opinion, rather than requiring the parties to engage in litigation that may be rendered unnecessary by the Supreme Court’s decision.
The first third of 2016 has seen the issuance by the courts of several major OPRA opinions. Notably, all of these rulings upheld the decision of the custodian.
-Paff v. Galloway Tp.
As I’ve previously said, this is the most important OPRA opinion in many years. The Appellate Division held, for the first time, that a public body is not required by OPRA to compile information from its computerized records to produce a requested report.
–C.G. v. Winslow Tp.
This trial court opinion is the first New Jersey published opinion on an issue that often comes up under OPRA– the extent of redactions that must be made, under federal law, of “personally identifiable information” within educational records concerning students. The court ruled that the school board had properly redacted parents’ and students’ initials, as well as the case docket numbers, shown on settlement documents.
–O’Boyle v. Longport
The Appellate Division upheld the confidentiality of information identifying properties that have made FEMA claims for flood damage. Again, this type of OPRA request often is made, but this is the first Appellate Division opinion to deal with this issue.
The Supreme Court’s recent decision to review Matter of Fireman’s Ass’n Obligation to Provide Relief Application has attracted attention for presenting the novel issue of whether OPRA permits public agencies to file declaratory judgment suits concerning access to records. But the case also involves review of whether the Appellate Division correctly ordered disclosure of an applicant’s financial relief assistance award. This ruling raises crucial, unsettled issues concerning the extent that New Jersey law protects individuals’ privacy interests–issues of far greater public importance than the litigation procedure question presented by this matter.
I’ve previously expressed my view that the issue of whether agencies may file OPRA declaratory judgment suits is not especially significant. In most cases, agencies should have no need to bring a declaratory judgment action under OPRA–they can simply deny the request, and then defend that decision if a requestor files a court or GRC complaint. I doubt that declaratory judgment OPRA complaints will be filed very often, even if the Supreme Court rules that such actions are permissible.
In contrast, because public bodies often face OPRA requests for records that involve an expectation of privacy, the Supreme Court’s consideration of the privacy question in the Fireman’s Ass’n case is extremely significant. OPRA custodians have little case law guidance on how to handle the difficult issue of protecting privacy interests. The Supreme Court established the basic guidelines governing OPRA’s privacy provision in its 2009 Burnett opinion, but there are few published court opinions since then that have applied these standards.
The records sought in Fireman’s Ass’n would reveal the recipient of financial relief payments and the amount paid. The Appellate Division determined that such information is subject to the expectation of privacy, because it shows that the award recipient was in financial distress. Typically, private information like this about a person’s financial status would be kept confidential. However, applying Burnett’s balancing test, the Appellate Division concluded that the interest in public disclosure, based on the allegation that there may have been some impropriety in granting an award to the applicant in question, outweighed the privacy interest.
The Appellate Division’s holding only affects the specific records in question in the case, but of course any discussion by the Supreme Court has much broader precedential value. The Supreme Court’s clarification of how to resolve privacy concerns raised by OPRA requests is sure to have an impact on access to many types of records.
Will the Supreme Court agree with the Appellate Division’s analysis, or give greater weight to the privacy interests that are present here? The answer to this question will affect how courts and record custodians should evaluate all future privacy issues raised by OPRA requests, and consequently will have an enormous effect on privacy rights in New Jersey.
The Supreme Court announced that it has added a new OPRA case to its docket. The case, with the ungainly title of Matter of NJ Firemens Assn Obligation to Provide Relief Applications, involves two issues: (1) whether a public body may file a declaratory judgment action concerning whether requested records may be withheld, and (2) whether the requestor should be granted access to the records sought here, which show the name of a particular applicant for a financial relief assistance award and the amount awarded.
The Appellate Division determined that OPRA does not allow record custodians to bring declaratory actions against requestors to enforce the claimed right to withhold the requested records. The court also ruled that the requested relief application records had to be disclosed, concluding that the requestor’s interest in disclosure of the information about one specific applicant outweighed the applicant’s privacy interests.
This is the third OPRA case now pending before the Court, joining Lyndhurst (criminal investigatory records) and Gilleran (security exemptions).