2017 was the most significant year for OPRA law since the enactment of the statute in 2002. The Supreme Court decided four OPRA cases in 2017, a remarkably high number in view of how few cases the Court grants review of each year. The Supreme Court and the Appellate Division issued many important rulings during this past year, which dealt with a number of crucial OPRA questions and dramatically reshaped OPRA law.
The Lyndhurst case, a landmark opinion involving the Court’s first interpretation of OPRA’s law enforcement records provisions, received the most attention from the media, which portrayed it as requiring greater public access to law enforcement records. As I’ve previously explained, this is simply wrong; the Supreme Court in fact held that most records connected with criminal investigations are not accessible under OPRA.
While the Lyndhurst opinion is extremely significant, I think the Supreme Court’s opinion in Paff v. Galloway Twp. will have a greater day-to-day effect on all public bodies. The Court’s determination that OPRA requires public bodies to produce any type of requested report from information in electronic databases will greatly increase the workload of those responsible for dealing with OPRA.
The Supreme Court’s other two opinions are important as well. The Court, in Matter of NJ State Firemens Assn Obligation to Provide Relief Applications, confirmed that OPRA strongly protects individuals’ privacy rights, and also addressed, for the first time, the ability of public bodies to file declaratory judgment actions concerning OPRA issues. And in Verry v. Franklin Fire Dist., the Court held that volunteer fire companies are not subject to OPRA.
The year is notable simply due to these Supreme Court rulings, but it should not be overlooked that the Appellate Division also issued a number of significant OPRA opinions, including several groundbreaking precedential opinions:
-North Jersey Media Group v. Governor’s Office–trial judges may impose fines for OPRA violations
-L.R. v. Camden School Dist.–student records are not accessible under OPRA
–Scheeler v. Governor’s Office--OPRA requests are public records
–Stop & Shop v. Bergen County–mootness of OPRA lawsuits
With Governor Murphy’s inauguration only a few weeks away, the Appellate Division issued a timely opinion reaffirming that records showing the deliberations of the Governor’s Office are entitled to confidentiality.
New York Public Radio v. Office of the Governor involved an OPRA and common law request for “town priority lists” (TPL), which were used several years ago by Gov. Christie’s office to determine the municipalities that the office would focus on to build support for the Governor. In 2016, the Appellate Division held that these documents were exempt under OPRA as deliberative material, but remanded for consideration of requestor’s common law claim.
The trial judge denied the common law claim, and the requestor appealed. On December 19, 2017, the Appellate Division upheld this denial of access.
The opinion doesn’t indicate what argument the requestor made to claim that there was an interest in public disclosure of the lists. It doesn’t appear the requestor had much of an argument in this regard, as it even emphasized to the court that the TPLs were no longer in use.
In any event, the Appellate Division did not base its ruling on its evaluation of the strength or weakness of the requestor’s interest in disclosure of the TPLs; instead, the court focused on the substantial public interest in maintaining the confidentiality of communications reflecting governmental decisionmaking. Notably, it stated that this interest remains strong even after the decision has been made.
It’s useful to have a reminder from the Appellate Division of a crucial aspect of effective government operation–that deliberative material is entitled to a strong presumption of confidentiality.
In an unpublished opinion issued today, the Appellate Division rejected the argument that OPRA requires the disclosure of employee resumes with no redactions. Scheeler v. NJ Dept. of Children and Families.
OPRA exempts personnel records, which includes resumes, from disclosure. The statute permits only limited resume information to be disclosed–information which shows that a public employee meets the specific education and experience qualifications that are prerequisites for his job. In this appeal, the agency complied with the statute and released employee resumes with much information redacted.
The requestor argued that Executive Order 26 (McGreevey) overrides this statutory requirement and mandates release of unredacted resumes. The Appellate Division rejected this position, because it would nullify the legislative protection of personnel records in OPRA.
The court’s conclusion that the executive order cannot supersede the statute seems self-evident, but nevertheless OPRA requestors often rely on Executive Order 26 in seeking access to resumes. For example, see this post concerning an (unsuccessful) effort to obtain applicants’ resumes. The appellate and trial courts have consistently rejected the Executive Order 26 argument and upheld the confidentiality of resumes, but there is no precedential opinion addressing this precise issue.
Last month, in Scheeler v. Galloway Tp., the Appellate Division held, for the first time, that public bodies must give requestors “immediate” access to all litigation settlements, including releases. In my view, this holding misinterprets OPRA.
The Appellate Division’s analysis was straightforward: the statute requires that custodians provide immediate access (rather than taking 7 business days to respond) when in receipt of a request for certain types of records; one of the designated records is “contracts;” and a settlement is a contract.
But the OPRA provision in question is not really so clear. The statute doesn’t simply state that immediate access is required for “contracts;” instead, it says, “contracts, including collective negotiations agreements and individual employment contracts.” This means that the statute does not automatically cover all contracts and agreements; if it did, the Legislature would not have needed to add language explaining that union agreements and employment contracts are included.
I think the Legislature added this specific language because its intent was to mandate immediate access only to records that public bodies are capable of producing quickly. What these records have in common with the other records listed in the immediate access section is that the custodian typically can quickly obtain them. Union and employment contracts, as well as salary information, will be on file with the personnel department, and contracts for goods and services will be on file with the purchasing/finance department.
In contrast, as the Appellate Division has previously recognized, litigation settlements are often not even held by the public body itself, but may be in the possession of various outside agents, such as law firms and insurers. As a practical matter, it will be impossible for most custodians to “immediately” provide access to this type of record, meaning that OPRA should not be interpreted to impose this requirement.