With the Supreme Court poised to decide five OPRA cases, 2017 will bring fundamental changes to OPRA law and practice. It’s remarkable that the Supreme Court, which agrees to review a fairly low number of cases each year, will issue so many opinions concerning this one statute.
I think that 2017 will involve the most significant developments in OPRA requirements since the law first went into effect 15 years ago.The Supreme Court cases all involve OPRA issues of far-reaching importance, including:
-access to police dash cam videos
-the interpretation of the criminal investigatory records exemption
-the application of OPRA’s exemption for privacy
-whether public bodies may file declaratory judgment OPRA litigation
-whether OPRA covers volunteer fire companies
-whether OPRA requires public bodies to provide reports from databases.
2016 was a transitional year in the development of OPRA law: many important issues were brought to the Appellate Division during this year, but these issues will not be finally resolved until 2017, when the Supreme Court will issue opinions in the many OPRA cases now pending before it.
These cases involve such critical matters as access to police dash cam videos, the scope of the criminal investigatory records exemption, privacy, the use of declaratory judgment in OPRA litigation, the application of OPRA to volunteer fire companies and OPRA requests that seek reports from databases.
There are some significant matters that were resolved in 2016. A few weeks ago the Supreme Court issued its opinion in Gilleran, dealing with the security exemption and building surveillance camera footage.
Also, one notable case decided by the Appellate Division is not, at least at this point, under review by the Supreme Court. In North Jersey Media v. Bergen Prosecutor, the Appellate Division held that an agency may decline to confirm or deny the existence of responsive records in answering a request for records concerning a person who has not been charged with a crime.
These two cases are quite important, but the pendency of a number of Supreme Court OPRA cases makes next year even more significant.
Requestors who successfully challenge OPRA denials are entitled to attorney fees, and as a result, public bodies often have to pay large fee awards. But public bodies can fight against excessive attorney fee demands made by requestors.
An unpublished Appellate Division opinion, issued today, illustrates one way this can be done. In Stern v. Lakewood Volunteer Fire Company, the court determined that the request had been improperly denied because the fire companies were subject to OPRA. The court also upheld the trial judge’s decision to award $6300 in attorney fees, well below the requestor’s demand for $25,000.
The attorney’s hourly rate of $315 was granted, but the court said that this would be awarded for 20 hours of work, rather than the 50 hours claimed by the requestor. The court based this significant reduction on the fact that the issue in the case, whether OPRA applies to fire companies, was not novel and did not require a lot of research.
Notably, the Appellate Division also took into account the minimal level of finances of the fire companies. It said that in calculating an appropriate fee award, it is relevant to consider that fire companies are not public entities with “almost inexhaustible resources” (quoting the Supreme Court’s opinion on OPRA attorney fee awards, NJDPM v. NJ Dept. of Corrections).
Today the Supreme Court added yet another OPRA case to its docket–the sixth one in the past year. In Paff v. Ocean County Prosecutor, the Court will consider two issues: (1) Does the criminal investigatory record exemption apply to a police dash cam video; and (2) If the video is subject to disclosure, can it be withheld due to the arrestee’s privacy interest?
The Court is already reviewing the first question in the Lyndhurst case; as explained here, it was obligated to accept review in the Paff case because there was a dissent in the Appellate Division on the criminal investigatory record issue. I expect that the Court will resolve the issue in Lyndhurst, since that case has already been argued.
The real importance of Paff v. Ocean County Prosecutor lies in the fact that the Court decided to grant review of the privacy question. The issue of the privacy rights of individuals shown in police dash cam videos is of great interest in New Jersey as well as throughout the country. And it will also be extremely significant, for OPRA law in general, to have guidance from the Supreme Court on how to interpret and apply OPRA’s privacy exemption.
I’ve criticized the Appellate Division’s opinion in Paff for its mistaken ruling that people shown in police dash cam videos have no reasonable expectation of privacy. Hopefully, the Supreme Court will correct this erroneous holding.