Monthly Archives: July 2017

Important OPRA Issues Left Open By The Supreme Court’s Lyndhurst Opinion

The Supreme Court’s recent landmark opinion in the Lyndhurst case settled some key public records issues, with the Court holding that use of force reports are not exempt under OPRA; investigatory reports, witness statements and other investigatory records are confidential, under both OPRA and the common law; and dashcam videos of fatal police shootings are accessible only under the common law.

But the Court’s opinion also left open a number of major OPRA issues. Here are a few:

-Whether the criminal investigatory exemption applies to MVRs operated under a local police department’s policy. The Court will address this issue in Paff v. Ocean County Prosecutor, a case that has not yet been argued.

-Whether the criminal investigatory exemption applies to MVRs of a routine traffic stop. The Lyndhurst Court noted that it was not deciding this issue, because the facts before it clearly involved a criminal investigation.

-Application of OPRA’s privacy protection to the people shown in MVRs. The Court didn’t mention this issue in ordering release of the videos; presumably, no one involved in the case claimed a privacy interest. Again, this question will be considered by the Supreme Court in the Paff case.

-Accessibility of police body camera videos.

-Application of OPRA’s ongoing investigation exemption. The Court provided guidance on this section of OPRA, but it was mostly in the context of investigations into fatal police shootings. The parameters of this exemption will need to be more specifically defined in future cases dealing with the more common types of investigations–criminal investigations not involving police shootings, and the many investigations conducted by non-law enforcement agencies.


New “Mugshot Extortion” Law Raises OPRA Issues

In a recent post, I noted that it’s not clear whether mugshots are public records under OPRA–although these photos are routinely posted online, the GRC has held them to be exempt under OPRA, and the federal courts have held that privacy precludes their release under FOIA.

The other day the Governor signed legislation that makes the answer to this question even less clear. The new statute seeks to stop what it calls the “extortionate” practice of websites that publish mugshots and charge people for removing them from the internet. Specifically, the legislation prohibits soliciting a “pecuniary benefit” in exchange for refraining from disclosing criminal history information about a person, including a mugshot.

Although this statute doesn’t mention OPRA, it states that “the law authorizes public access” to this type of information. But the statement that mugshots are public is contradicted by other language in the statute, which recognizes that privacy rights are affected by publication of mugshots and that people should not have to pay for removal from the internet of this embarrassing information.

This new statute puts OPRA custodians in a difficult position. They are faced with having to reconcile the legislative indications that mugshots are both publicly accessible and subject to the expectation of privacy.

Administrative Office of the Courts Issues Directive on How to Handle Suits Seeking Release of Dashcam Video of a Fatal Police Shooting

In the wake of the Supreme Court’s Lyndhurst opinion, the AOC has issued a directive on how judges must handle lawsuits which seek release of a dashcam video of a fatal police shooting. The directive says that these are common law right to know cases which should be subject to the summary action court rule procedures that apply to OPRA cases.

This is a clear statement from the Judiciary that litigation over fatal police shooting videos should be handled as quickly as possible. Note, however, that the common law, unlike OPRA, does not have a deadline for the agency’s response to the request for disclosure. While a response to a common law request should not be unreasonably delayed, there’s no legal requirement that it be made within OPRA’s 7-business day time frame.

The Supreme Court’s Lyndhurst Opinion Ensures The Confidentiality Of Most Law Enforcement Records

The Supreme Court’s recent opinion in Lyndhurst has been hailed in press reports as a big victory for the transparency of police departments. But the opposite is true: the Lyndhurst opinion will enable law enforcement agencies to maintain the confidentiality of almost every record related to criminal investigations.

While the Court ordered disclosure of a few records in this case (use of force reports and the dashcam video of a fatal police shooting), it held that the overwhelming majority of police investigative materials are not accessible to the public under OPRA.

The Court held that investigatory reports, witness statements and similar investigatory records are confidential, under both OPRA and the common law. The Court also did not disturb the Appellate Division’s ruling in this case that OPRA exempts from disclosure as criminal investigatory records other items generated by the police in investigating a crime, such as log book notations, vehicle logs, activity logs, daily statistical sheets, daily bulletins, incident reports, and operations reports.

The Court also held that all dashcam videos in connection with a potential crime are confidential under OPRA. The Court said that only dashcam videos of fatal police shootings are accessible under the common law. This means that most dashcam videos, which are taken in criminal matters that do not involve a fatal police shooting, are confidential.

In short, the Court’s ruling means that nearly every record connected with a criminal investigation is not disclosable under OPRA.

It’s also notable that the opinion shows the Court’s recognition of the important law enforcement interests served by ensuring confidentiality of investigative records. For example, it emphasized that early disclosure of investigative materials is against the public interest. As another example, the Court rejected the plaintiff’s position that the criminal investigatory exemption is extremely narrow. The Court instead broadly construed the exemption’s language, concerning records that “pertain to an investigation,” as covering all records connected with the pursuit or apprehension of a suspect.

Public bodies should understand that the Lyndhurst Supreme Court opinion makes clear that OPRA favors the confidentiality of law enforcement records. This opinion supports a broad interpretation of the reach of OPRA’s criminal investigatory records exemption, and allows most records connected with a police investigation to be withheld.


Supreme Court’s Lyndhurst Opinion: Dashcam Videos Are Exempt Criminal Investigatory Records, Use of Force Reports Are Not

The Supreme Court issued its opinion in the Lyndhurst case today. This landmark ruling governs whether key criminal investigatory records–police vehicle dashcam recordings (MVRs), use of force reports (UFRs), investigative reports and witness statements–are confidential under OPRA.

The Supreme Court held that MVRs pertaining to a criminal matter are covered by OPRA’s criminal investigatory exemption. Similarly, it determined that investigative reports and witness statements concerning a criminal investigation are subject to this exemption.

The Court held that UFRs are not covered by the criminal investigatory exemption: because these documents are mandated by an Attorney General law enforcement directive, they are required by law to be made, and therefore do not satisfy OPRA’s standard for the criminal investigatory record exemption. In effect, the Court reinstated what had been the law since 2009, when the Appellate Division ruled, in O’Shea v. West Milford, that UFRs are not exempt for this reason.

The Supreme Court did order release of the MVRs at issue in this case under the common law, finding that the public’s strong interest in information about the police shooting of a civilian outweighed the confidentiality interests in the MVRs. But the Court reached the opposite conclusion with regard to investigative reports and witness statements, holding that they are confidential under the common law.

The Lyndhurst opinion is critically important for all public bodies, not just law enforcement agencies. In addition to analyzing the criminal investigatory records exemption for the first time, the Supreme Court also provided guidance, again for the first time, on the ongoing investigation exemption (section 3a of OPRA), which covers all investigations. In future posts, I’ll discuss the many implications of the opinion for public bodies in their administration of OPRA.

GRC: OPRA Penalties Are Personal

In a recent decision, the GRC reaffirmed its position that OPRA’s penalties are imposed upon the personĀ  who knowingly violated the statute, rather than the public body employing that person. Doss v. Boro of Bogota, No. 2013-315/2014-152 (June 27, 2017).

The Doss case shows how strictly the GRC applies this concept. The GRC had sent the case to the OAL for a determination of whether the custodian or any other Boro employee had knowingly and willfully violated OPRA. At the OAL proceeding, the Boro stipulated that, through the prior Administrator, the Boro had knowingly and willfully denied access to the requested records, and agreed to pay the $1000 penalty. Based on this, the ALJ said that the case was resolved. However, the GRC disagreed, and it remanded the matter back to the OAL for a determination of whether any specific individuals had intentionally violated OPRA.

The GRC’s decision was based on the rationale that an OPRA penalty is personal, and is imposed solely on the individual who committed the violation. The GRC said that in this case, there was no evidence that the prior Boro Administrator had authorized the Boro to stipulate that he had knowingly committed a violation.

The GRC did not indicate that a public body is prohibited from paying the fine on behalf of the guilty employee. Nevertheless, despite the Boro’s conceding that it had violated OPRA, through the actions of its former employee, and despite the Boro’s payment of the penalty for a violation, the GRC determined that the case was not resolved.

How Will New Jersey Respond To An OPRA Request From Trump Voter Fraud Commission?

Yesterday, the State Division of Elections announced that the request for voter data from the Trump administration’s “voter integrity commission” is “under review.” The Division’s statement seems to suggest that New Jersey will only release public information to the Commission in response to an OPRA request: “[N]o information has been released nor will any future information be released that is not publicly available or does not follow the appropriate legal process for information requests.”

Presumably, the “legal process for information requests” means OPRA. But it appears that the Division would have to deny any OPRA request submitted on behalf of the Commission because the request would not be from a citizen of New Jersey. As discussed here, the GRC ruled in October 2016 that only citizens of New Jersey may make OPRA requests.

As I’ve previously discussed, there’s no precedential court opinion on the question of whether OPRA is available only to New Jersey citizens. In the absence of judicial precedent on an OPRA issue, New Jersey state agencies typically comply with GRC rulings. In this matter, the Division would be constrained to reject entirely an OPRA request from the Commission, based on the GRC’s 2016 citizenship decision.