Summer is typically a slow period for the New Jersey courts, but since Memorial Day of this year, there have been several important OPRA opinions and orders.
The Appellate Division issued a significant, published opinion in June. In Paff v. Ocean County Prosecutor, the court held that police vehicle dashcams are not covered by OPRA’s criminal investigatory exemption. The court also held that OPRA’s privacy exemption did not apply to drivers and passengers shown in these videos. As discussed here, this case is likely headed to the Supreme Court.
The Appellate Division also issued a few unpublished opinions that dealt with important OPRA topics:
–North Jersey Media v. NJ Dept. of Law and Public Safety (names of State employees who seek legal representation or indemnification from the Attorney General are exempt)
–NY Public Radio v. Gov. Office (outside activity records of public employees are exempt under OPRA and not disclosable under common law)
–Brennan v. Bergen County Prosecutor (names and addresses of bidders at auction of sports memorabilia held exempt under privacy exemption)
In addition, during the summer the Supreme Court granted review in two OPRA cases:
–Paff v. Galloway Twp. (whether OPRA requires public bodies to produce requested reports from the information contained in computer databases)
–Verry v. Franklin Fire Dist. (whether a volunteer fire company that is a member of a Fire District is subject to OPRA)
The Appellate Division held today that the Attorney General properly denied a request for the names of State employees who sought legal representation or indemnification in connection with the Bridgegate investigations. North Jersey Media v. State Dept. of Law and Public Safety. The opinion is unpublished, even though no court has previously addressed the issue of whether OPRA requires disclosure of the identity of a government attorney’s client.
The court held that this information is confidential under the attorney-client privilege as well as the Rules of Professional Conduct. Communications between State employees and the Attorney General’s Office concerning legal representation matters are covered by the attorney-client privilege. Also, the court said that the OPRA request was properly denied because R.P.C. 1.6 provides that client identity is confidential.
The Appellate Division also reversed the trial court’s award of attorney fees to the requestor. The court ruled that although the Attorney General’s Office had provided certain other records to the requestor, the release of these records was not caused by the OPRA suit.
The attorney fee ruling is notable only with regard to the amount of fees involved–over $57,000 for the trial court litigation alone. This shows, as I’ve previously discussed, that OPRA matters can potentially generate substantial attorney fee awards against public bodies.
Even though the law is clearly settled that OPRA does not require a custodian to conduct research in order to answer a request, requestors continue to make this demand. In an unpublished opinion issued today, Branin v. Collingswood Boro Custodian, the Appellate Division once again rejected a requestor’s argument that the custodian should have performed research to find the documents sought.
In Branin, the requestor asked for the settlement agreement in certain litigation. There was no such document. The court stated that the custodian could have figured out the terms resolving the litigation by researching documents in the Borough solicitor’s litigation file, and having the solicitor explain the significance of various documents. But, the court stated flatly, “OPRA does not require such research.”