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.



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