Monthly Archives: June 2016

Appellate Division: Police Dashcams Are Not Exempt Criminal Investigatory Records

The Appellate Division ruled today that police vehicle camera videos are not exempt criminal investigatory records under OPRA. Paff v. Ocean County Prosecutor. However, this opinion has little precedential impact, because there are conflicting Appellate Division opinions on the issue of whether such videos must be disclosed. In addition, this question will be resolved by the Supreme Court, perhaps by the end of this year.

The appellate court’s conclusion that criminal investigatory exemption did not apply rested on its determination that the police dashcam recordings were required by law to be made, maintained or kept, based on the fact that the township police chief had ordered all officers to activate their vehicle’s mobile recording device when making a traffic stop. The court specifically noted that its analysis and holding conflicted with that of the Appellate Division’s Lyndhurst opinion, where different appellate judges said that police vehicle videos are criminal investigatory records and are not required by law to be made, maintained or kept.

One member of the 3-judge panel in the Paff case, Judge Gilson, filed a dissenting opinion. The judge determined that the police chief’s order did not meet the “required by law” standard.

When there is a dissent, the losing party has an automatic right of appeal to the Supreme Court. I have no doubt that the prosecutor’s office will appeal, meaning that the Supreme Court will resolve whether the recordings are exempt.

And even before taking up the appeal in Paff, the Supreme Court may resolve the question in its consideration of the Lyndhurst case. That appeal has been pending with the Supreme Court since  December 2015, so the Court is likely to issue an opinion around the end of 2016.

Due to the conflicting Appellate Division opinions, until the Supreme Court rules, there will be no clear answer as to whether OPRA requests for dashcam recordings must be granted.

 

 

Appellate Division Upholds Confidentiality of Victims’ Records

In an unpublished opinion issued today, the Appellate Division affirmed the GRC’s decision that a convicted felon may not obtain records pertaining to his victim and the victim’s family. Killion v. Hammonton Police Dept.

I believe this is the first appellate opinion dealing with OPRA’s provision (N.J.S.A. 47:1A-2.2) that a person convicted of an indictable offense may not have access to government records containing personal information related to the victim or the victim’s family. However, the opinion does not analyze this provision. Apparently, it was undisputed that the records in question fell within section 2.2; instead, Killion argued that this exemption didn’t apply because he made the OPRA request before he was convicted. The court summarily rejected this argument, saying that it would not second-guess the GRC’s conclusion that the privacy interests of the victim and the victim’s family required denial of the request.

GRC: Custodian’s 100-Day Extension Violated OPRA

Custodians may lawfully extend the time to answer an OPRA request beyond the statutory period of 7 business days. However, as shown in a recent decision, the GRC may determine that too long an extension period constitutes a violation of OPRA.

In Rodriguez v. Kean Univ., the request sought correspondence among a large group of people concerning certain topics. The custodian needed 11 extensions, totaling around 100 business days, to answer this request. The request was made on November 4, 2014 and was answered on April 23, 2015.

The GRC noted that the custodian had to work with several people to determine if there were any responsive records. However, it did not consider this a sufficient reason to justify what it deemed “an extensive delay” in responding to the request. The GRC concluded that the custodian violated OPRA by “unnecessarily” extending the response time. The agency did not penalize the custodian, finding that the violation was not knowing and willful.

Public bodies need to be aware of the risk that the GRC will find a violation, and perhaps impose a fine, where multiple extensions are taken before responding to an OPRA request.

The “Glomar” Response to OPRA Requests For Investigation Information

An OPRA request to a law enforcement agency for records of its investigation of a particular person poses a knotty issue where, as is often the case, there has been no public disclosure of whether that individual is under investigation. In that situation, the agency would necessarily seek to protect the confidentiality of the investigation. But a response that the agency’s records are exempt (under, for example, OPRA’s investigatory or privacy exemptions) would reveal the existence of an investigation–a disclosure that itself would harm the affected person’s privacy interest.

FOIA case law solves this problem by permitting agencies to give the so-called Glomar response; this means that the agency tells the requestor that it neither confirms nor denies the existence of the records requested. The Justice Department explains that this response is necessary under FOIA to avoid revealing exempt information, such as whether someone is being investigated.

This concept is not limited to federal law. Recently, the New York Appellate Division held that the Glomar response is proper under New York’s public record law, and upheld the NYPD’s refusal to confirm or deny the existence of investigatory records concerning certain individuals. Matter of Abdur-Rashid.

No New Jersey court has ever addressed the validity of this type of response under OPRA. Nevertheless, the FOIA Glomar approach is a sensible way to avoid harming privacy and investigatory interests, which OPRA seeks to protect, and it ought to be followed in New Jersey.

Supreme Court Takes Another OPRA Case

Today the Supreme Court announced that it has granted review of Verry v. Franklin Fire District No. 1, to determine whether a volunteer fire company that is a member of a Fire District is subject to OPRA.

This is the fourth OPRA case currently pending before the Court. joining Lyndhurst (criminal investigatory records), Gilleran (security exemptions), and Firemen’s Assn (declaratory judgment¬† procedure and privacy issues).

It’s extraordinary that the Supreme Court is considering so many OPRA cases. In general, the Court grants review of very few cases of any type, and with regard to OPRA, it has decided approximately 10 cases over the 15 years of OPRA’s existence. The Court’s recent acceptance of four OPRA matters shows that there are many important OPRA issues yet to be resolved.

The GRC Continues to Misinterpret the “Immediate Access” Requirement

A few months ago, I discussed the GRC’s decision in Scheeler v. Dept. of Ed., which involved, in my view, a misinterpretation of OPRA’s provision requiring immediate access to certain types of records. The GRC recently denied the custodian’s request for reconsideration of this decision. Unfortunately, the reconsideration decision continues the GRC’s pattern of misapplying this aspect of the statute.

In this case, the requestor made a multi-part request, one part of which sought certain legal bills. After a brief extension period, the custodian responded to the entire request, providing some documents and advising that the agency did not have the requested legal bills. The GRC ruled that the custodian had violated OPRA by not immediately telling the requestor that there were no legal bills.

I think this conclusion is inconsistent with the statute, which says that citizens must be given immediate “access” to certain types of basic government documents, such as bills and contracts. There can be no violation of this right to “access” where the requested records do not exist.

In addition, I think that legal bills don’t fall under the immediate access requirement. They are significantly different from the other records covered by this provision–all of which can be quickly disclosed–because legal bills must be carefully reviewed for attorney-client privileged information before being released.

The Department of Education sought reconsideration of the GRC’s decision on a different basis. It argued that the records requested are not subject to the immediate access provision because they were not bills submitted to the Department for payment; instead, they were the documents submitted in litigation by a plaintiff in support of its application for an award of attorney fees.

The GRC rejected this argument, saying that the applicability of OPRA’s immediate access provision doesn’t depend on whether the bills were submitted to the agency. But this misses the whole point of OPRA’s immediate access provision. Its purpose is to require speedy disclosure of certain basic information held by public bodies, such as budgets, contracts, bills and employee salaries. Litigation records that are held by a different entity plainly do not come under the immediate access requirement.

There are no court cases on the immediate access provision, so the GRC’s decisions are the only precedent covering this section of the statute.