The Appellate Division ruled today that a public body correctly withheld, under OPRA’s privacy provision, the home addresses, telephone numbers and email addresses of individuals who had submitted OPRA requests. Wolosky v. Somerset County.
The court determined that although OPRA requests themselves are government records, this does not mean that personal information shown in an OPRA request must be disclosed. Instead, OPRA’s privacy protection applies to such information. The Appellate Division conducted the balancing test required under OPRA’s privacy provision, and concluded that requestors’ personal contact information should not be disclosed.
Notably, the court indicated that the requestor here had shown no genuine need to obtain disclosure of this personal information. This case is another example of how some requestors seek to use OPRA to infringe on individuals’ privacy rights.
The Appellate Division’s opinion continues the recent trend of courts holding, in non-precedential opinions, that home addresses are protected by OPRA’s privacy section. See this post for further discussion of this case law.
Every OPRA request presents the risk that a public body will have to pay the requestor’s attorney fees if the request is not answered properly. The courts generally construe OPRA’s attorney fee provision in favor of requestors; one judge even awarded fees in a case where the requestor obtained no records, simply because the custodian had not fully described the correctly withheld records.
The Appellate Division’s recent opinion in Paff v. Bergen County is a rare example of a court declining to apply OPRA’s attorney fee provision so broadly. As discussed here, this opinion is important because it held, for the first time, that internal affairs records of law enforcement agencies are confidential. In addition, the court said that the requestor could not obtain attorney fees, even though the custodian had not fully complied with OPRA in handling the request.
The OPRA violation was the custodian’s failure, in initially responding to the request, to give the basis for the redactions. This explanation was given after the complaint was filed. The Appellate Division ruled that this omission did not warrant the imposition of attorney fee liability. It noted that the requestor did not obtain the records that he had sought and litigated over– the names of officers and complainants shown in the internal affairs complaints–and therefore had not prevailed in his OPRA case.
It’s rare for a court to deny fees where there’s an OPRA violation, but the result here is consistent with the legislative intent that only requestors who truly succeed in their litigation efforts should receive attorney fees.
Today the Appellate Division held that records of internal affairs investigations of law enforcement officers are exempt from disclosure under OPRA. Paff v. Bergen County.
The court specifically upheld the denial of a request for the names of complainants and the employees who were the targets of the complaints, on the ground that this information must be kept confidential under the Attorney General’s Internal Affairs Guidelines.
As discussed here, the GRC has previously said, correctly in my view, that internal affairs investigation and complaint records are also exempt because they are personnel records. The Appellate Division did not address this basis for confidentiality in the opinion issued today.
The Paff v. Bergen opinion is extremely significant. Although requestors frequently seek internal affairs records, this is the first appellate case to deal with the issue. Given the importance of this ruling, it’s surprising that the court did not make it a published, precedential opinion.
In an unpublished opinion, a trial judge denied Teaneck’s application to enjoin a requestor from filing OPRA requests, despite the fact that the requestor had submitted an excessive and abusive amount of OPRA requests. Twp. of Teaneck v. Jones.
The judge’s decision rests on the premise that OPRA does not authorize public bodies to obtain such an injunction. But this misses the key point that the Supreme Court has said that the courts do have the power to restrain requestors who file excessive, unreasonable public records requests.
It’s hard to imagine a clearer example of the need for such judicial control than the Jones case. In just two months, Jones submitted 380 requests, all of which were multi-part. These requests, “the size and heft of a phone book,” according to the judge, sought nearly every possible category of municipal information. And there seems to be no dispute that the requestor did not really want any records, but instead had filed this avalanche of requests to harass Township officials.
There’s no indication whether Teaneck plans to appeal. This case shows that appellate guidance is necessary, to confirm that public bodies may seek injunctions where OPRA requestors abuse the system.
The Supreme Court recently held argument in Paff v. Galloway Twp., concerning whether OPRA permits a request that a public body create a log showing the sender, recipient, date and subject matter of emails of certain Township employees over a specific period of time.
This is a rare case where the outcome can be predicted based on the oral argument. The justices raised no objections to the argument of the requestor’s attorney that this is a valid OPRA request because it simply involves extracting certain information already shown in the emails existing in the Township’s computer system. And the justices were politely contemptuous of the counter-argument that this is an invalid request for the creation of a new record.
Unfortunately, there was hardly any mention during the argument of the consequences of holding that this type of request is permissible. As I’ve explained, see this post, the result will be that OPRA requestors can compel public bodies to produce reports from the information contained in computer databases, with the data organized according to the requestor’s preference. Custodians will effectively be research staffers for requestors, obligated to compile for requestors reports that did not previously exist.