A recent Appellate Division opinion is a reminder that it’s not just record custodians who face the risk of a $1000 fine for violating OPRA; any public employee, appointee or elected official may be penalized.
The issue actually addressed in the case, Johnson v. Boro of Oceanport, was whether the official had waited too long to ask for reconsideration of the GRC decision that fined him $1000. The court held that the request, made 55 months after the decision, was grossly late and therefore the agency properly refused to consider it.
The more important aspect of this opinion, for all New Jersey public employees and officials, is that the person who was fined for violating OPRA was a Borough councilman. The councilman’s violation was that he failed to respond to several requests made by the custodian for records responsive to an OPRA request.
In prior posts, I’ve highlighted the costs to the government of failing to comply with OPRA. Government officials and employees should not overlook that there are significant potential personal costs of noncompliance as well.
In Collingswood Bd. of Ed. v. McLoughlin, the Board of Education confronted an OPRA issue that often comes up: how to handle an OPRA request for a record that appears to be a public record, but a third party claims that it is confidential.
The record in question was an investigatory report concerning the Board’s decision not to reappoint a coach, Joseph McLoughlin. McLoughlin notified the Board that his position was that the report was not a government record and that he would file suit to prevent its release. However, without waiting for such a suit to be brought, the Board filed a declaratory judgment action seeking a judgment that the report was a public record. Its own complaint stated that the report was disclosable under OPRA. The trial court agreed that the record had to be disclosed under OPRA.
The Appellate Division held that under the In Re Firemens Assn. opinion, a custodian may not file an OPRA declaratory judgment action, and it remanded to the trial court to calculate an additional attorney fee award that would cover the time spent by the requestors in litigating the declaratory judgment action.
This attorney fee award could have been avoided. As I’ve previously discussed (see this post), when a third party claims a confidentiality interest in a document that the custodian believes must be released under OPRA, the custodian should advise the party that the record will be released by a certain date, in order to give this party the opportunity to initiate legal action to prevent disclosure.
Following this procedure ensures that the litigation over the record, if any, is between the requestor and the party that actually claims confidentiality, and minimizes the litigation costs of the public body.
A few weeks ago, I made a presentation to an audience of about 100 government attorneys and OPRA custodians on OPRA’s privacy requirements. The attendees had questions on a variety of topics, but many were particularly concerned about how to handle OPRA requests for home addresses. As I’ve pointed out previously, New Jersey courts have never resolved the question of whether OPRA requires disclosure of individuals’ home addresses.
The situation is different in Pennsylvania, which has a public records statute that is similar to OPRA. On October 18, 2016, the Pennsylvania Supreme Court held that under this statute, home addresses are protected by individuals’ privacy interests. PSEA v. Commonwealth of Pa. In upholding the denial of a request for the addresses of public employees, the Court conducted a balancing test and determined that the strong privacy right of employees in their home addresses outweighs the nonexistent public interest in disclosure of this personal information.
In a decision issued on October 4, 2016, the GRC departed from its precedent of the past 14 years and ruled that only New Jersey citizens are permitted to make OPRA requests. Scheeler v. Burlington Tp. (2015-93).
The GRC primarily relied on a few recent trial court opinions that determined that the Legislature intended, in enacting OPRA, to prohibit those from outside the state from obtaining New Jersey government records. As I’ve discussed previously, I think this result is both wrong as a matter of law and unenforceable in practice.
In any event, the question of whether non-citizens may make OPRA requests is now before the Appellate Division, so by next year, when the court renders its opinion, the GRC’s position on the issue will no longer matter.
The Appellate Division recently held that the “crash investigation report” that police officers must file after investigating a motor vehicle accident may be withheld from disclosure under OPRA’s exemption for investigations in progress. North Jersey Media v. Tp. of Nutley.
Although the opinion is unpublished, and therefore not precedential, it involves an issue not previously addressed under OPRA–the alleged conflict between NJSA 47:1A-3a, which allows records to be withheld while an investigation is in progress, and NJSA 39:4-131, which says that motor vehicle accident reports are public records. In this case, the Essex Prosecutor initially denied an OPRA request for a crash report, because the Prosecutor’s Office was still investigating the accident. When it completed its investigation, it released the crash report. The requestor, relying on NJSA 39:4-131, argued that the crash report should have been immediately disclosed, despite the pending investigation.
The Appellate Division rejected this argument, on the basis that the more recent OPRA provision, granting confidentiality where release of an investigatory record will be inimical to the public interest, superseded the older Title 39 statute.
This result is clearly correct. In fact, in my view, the requestor’s argument is frivolous. The whole point of NJSA 47:1A-3a is to provide confidentiality to government records that otherwise must be disclosed, to avoid jeopardizing an ongoing investigation. Yet under the requestor’s argument, this provision would be meaningless, and agencies would have to disclose records even when to do so would be detrimental to the public interest.