Monthly Archives: January 2018

Appellate Division Issues A Problematic New Opinion

The Appellate Division recently issued an odd precedential OPRA opinion. Conley v. NJ Dept. of Corrections. The case presented a routine issue covered by settled law, but the court ignored the existing law and instead applied an incorrect analysis that will surely cause confusion and problems in future OPRA matters.

The request sought from the Department of Corrections a monthly report showing statistics of inmate grievances at various state prisons. Federal and state law require that such statistical records be maintained, and the DOC had previously provided the requestor with reports containing this information. However, this time the DOC responded that it had a new database system in which the monthly reports “are no longer generated or available.” Instead of providing a report, the agency produced statistics drawn from the database.

In response to the requestor’s GRC complaint that the DOC should have provided the monthly reports, the DOC said that there were no responsive records. The GRC affirmed on this basis.

This case is plainly governed by the Supreme Court’s 2017 Paff v. Galloway opinion, requiring that agencies put together requested reports from information in databases. The only question for the court in Conley, therefore, was whether the information sought by the requestor was in DOC’s database.

Inexplicably, the Appellate Division did not mention the Supreme Court’s opinion. Instead, it invented a new analysis that has no basis in the law: the court said that the DOC should have considered “the public-access ramifications” of modifying how it stored its records, and it ordered the agency to produce the requested reports.

The opinion rests on the conclusion that OPRA prohibits public bodies from changing their recordkeeping systems if the change makes it more difficult to access public information. The basis for this interpretation, according to the court, is that government transparency would otherwise be “vulnerable to bureaucratic manipulation.”

This interpretation of OPRA is simply wrong. The statute provides access to existing government records; it does not require that the government keep its records in any particular way.

The court’s new interpretation will create problematic OPRA claims. Requestors will be able to use the Conley opinion to argue, for example, that a public body violated OPRA by failing to maintain certain information, or even by changing its previous recordkeeping practices.



Appellate Division Upholds Confidentiality Of Draft Report

The law is settled that draft documents are confidential under OPRA’s exemption for deliberative material, but requestors still seek access to such records. In an opinion issued today, the Appellate Division upheld the denial of access to a draft report. North Jersey Media v. Clifton.

The report in question was from an accounting firm to the City of Clifton, concerning issues related to changes in the City’s payroll practices. The court determined that the report was clearly a draft, emphasizing that the report underwent several revisions at Clifton’s request. The court then applied the law that predecisional drafts are protected from disclosure under the exemption for deliberative material.

This case is another example of a problem I’ve previously discussed–the cost to the public of meritless OPRA litigation pursued by requestors. Here, the City had to spend public funds defending, in both the trial and appellate courts, its clear legal right to withhold a draft document.

Appellate Division: Reasons For Separation From Employment Are Confidential

The new year has started with issuance by the Appellate Division of an important opinion that addresses a longstanding problematic OPRA question–whether the statute requires public bodies to provide an explanation of the reasons underlying an employee’s separation from employment. The court held that OPRA does not require a public body to disclose information about the circumstances surrounding the separation; this means, for example, where the employee has resigned, the public is not entitled to learn his motivation for doing so. Libertarians for Transparent Government v. Ocean County Prosecutor.

The claim that public bodies must provide an explanation of the reasons why an individual is no longer employed is based on one of the statute’s exceptions to the personnel records exemption, which states that “the date of separation and the reason therefor” must be disclosed. Requestors often argue (as the requestor did in this case) that this phrase means that it is insufficient for a public body to indicate simply that an employee “resigned,” “retired,” or “was discharged.” They contend that OPRA requires the employer to reveal the “real” reasons an employee was separated, even if there are no records reflecting these reasons.

The Appellate Division rejected this argument as contrary to the statute’s plain language and intent. It held that the Prosecutor’s Office complied with OPRA’s requirement by indicating that the employee in question had resigned. The court refused to read into the statute the obligation to create records containing an explanation of the reasons underlying the resignation.

This is the first time an appellate court has addressed this issue. Unfortunately (and surprisingly), the opinion is not a published, precedential opinion.

OPRA Law Forecast For 2018: Major Court Opinions And Increased Litigation

The past year saw the largest number of important OPRA legal developments in the history of the statute.  While 2018 is unlikely to produce as many landmark cases as 2017, there will certainly be major court opinions that will have a substantial impact on public bodies. Also, I think this year will produce more OPRA litigation than ever before.

The Supreme Court has two highly significant OPRA cases on its docket that will be decided in 2018:

-Brennan v. Bergen County Prosecutor- The Court will consider whether OPRA compels disclosure of the names and addresses of people who successfully bid at an auction of public property. This will be the first time the Court will address a question that has plagued OPRA custodians and their attorneys since OPRA was enacted–what is the extent of privacy protection that must be afforded to home addresses?

-Paff v. Ocean County Prosecutor- This case also involves a critical privacy issue: do people shown in police dash cam videos have privacy rights? In addition, the Court will decide a key law enforcement record issue: does the criminal investigatory record exemption apply to dash cam video, where the video is made pursuant to an order of a local police chief?

In addition to these Supreme Court cases, I anticipate that a large number of important OPRA opinions will be issued by the Appellate Division and trial courts in 2018. I think this year will involve even more OPRA litigation than in past years, as requestors will seek to test how to interpret the many major court opinions that were issued in 2017. This should result in many issues of first impression being presented to the courts.