Monthly Archives: January 2017

Appellate Division: OPRA Requests Are Public Records

On January 27, the Appellate Division issued an opinion holding that OPRA requests themselves are government records that are publicly accessible under OPRA. Whether OPRA requests are confidential had never been previously addressed by the Appellate Division. Scheeler v. Office of the Governor.

The court rejected the State’s argument that there is a blanket exemption under OPRA for OPRA requests. However, the court recognized that there may be cases where specific requests could be confidential, on the basis of the privacy exemption or the competitive advantage exemption.

A Few Comments on the Supreme Court Argument in the Fireman’s Assn Relief Case

The Supreme Court heard argument a few days ago in IMO NJ State Fireman’s Assn Obligation to Provide Relief Applications. I have a few comments, based on my observation of the argument.

-It wasn’t clear how a majority of the justices felt about the question of whether public bodies may file OPRA declaratory judgment suits. In any event, as I’ve said before, I think the answer to this question is likely to have little impact on future OPRA cases.

-The justices were sympathetic to the privacy concerns raised by the requestor’s demand for records showing whether an applicant had received financial assistance. The justices all seemed to agree that the records in question are similar to those showing a person’s receipt of welfare assistance, which are strictly confidential. I think the Court may very well reverse the Appellate Division and hold that OPRA’s privacy exemption precludes release of the fireman’s relief records.

-The justices spent a lot of time discussing what procedure a custodian should follow when a third party has a privacy interest in the requested record, such as, is the custodian required to notify that party of the OPRA request? It looks like the Court may issue much needed guidance on how to handle this problem.

Privacy Rights Under Attack By OPRA Requestors

Since the enactment of OPRA, many requestors have tried to evade the statute’s protection of the privacy of personal information found in public records. Two recent Appellate Division cases involve examples of the egregious disregard that some requestors have for privacy rights.

In Wolosky v. Sparta, Bd. of Ed., decided January 13th, the records in question contained references to various students, identified by their initials. Despite having no need for the students’ names, and despite the obvious privacy rights of young students, the requestor argued to the appellate court that OPRA requires disclosure of the students’ full names.

Similarly, in Scheeler v. NJDOE, issued January 19th, the requestor demanded disclosure of school board members’ home addresses, despite having no need for these addresses.

While the court rejected the requestors’ claims in both cases, these are not precedential opinions. The absence of precedent means that nothing prevents future requestors from continuing to file litigation aimed at weakening OPRA’s limits on the disclosure of individuals’ private information.


Appellate Division: School Board Members’ Home Addresses Are Confidential Under OPRA

In an opinion issued today, the Appellate Division upheld the redaction of school board members’ home addresses under OPRA’s privacy exemption. Scheeler v. NJ Dept. of Ed.

The addresses appeared on financial disclosure statements filed by local school board members with the School Ethics Commission. The GRC determined that the addresses should be redacted to protect these individuals’ privacy interests. In reaching this decision, it noted that the School Ethics Law does not require that home addresses be shown on the disclosure statement.

The Appellate Division applied OPRA’s privacy balancing test and held the addresses were properly redacted. It found that the school board members had a strong privacy interest in their addresses here, because of the existence of other personal information on the disclosure statement form, such as their personal finances. The court also concluded that the requestor had shown no public interest would be served by disclosure of the addresses.

As I’ve discussed before, see this post, New Jersey courts have yet to resolve the important issue of whether OPRA requires disclosure of home addresses. Unfortunately, Scheeler is not a precedential, published opinion, so there remains no definitive court ruling on this question.

Appellate Division Upholds Redaction of Students’ Initials Under Privacy Exemption

In an unpublished opinion, the Appellate Division rejected the claim that OPRA requires disclosure of students’ initials, where their initials appear on a public record. Wolosky v. Sparta Bd. of Ed.

The records in question were school board attorney invoices, which contained references to various students, identified by their initials. The court upheld the redaction of the initials under OPRA’s exemption for privacy. The court determined that disclosing the initials could lead to identifying the students, and students’ strong privacy interests outweighed the requestor’s interest in disclosure.

Notably, the Appellate Division relied on a 2016 published trial court opinion, C.G. v. Winslow Tp. Bd. of Ed., which had similarly rejected the argument that OPRA mandates disclosure of students’ initials. See here for a discussion of the C.G. case.

Supreme Court Schedules Oral Argument In OPRA Case

The Supreme Court announced today that on January 18 it will hear argument in the OPRA case of IMO NJ State Fireman’s Assn Obligation to Provide Relief Applications.

This matter involves two important issues: (1) whether public bodies may file declaratory judgment OPRA actions, and (2) whether the records in question are confidential under OPRA’s exemption for privacy.

As I’ve discussed previously, I think the Court’s resolution of the second question may have the most far-reaching impact, as it will provide much needed guidance on the extent that OPRA protects individuals’ privacy interests