Appellate Division: Litigation Settlements Are Covered By OPRA’s “Immediate Access” Provision

The Appellate Division recently issued an opinion that will cause problems for custodians. The court ruled, for the first time, that OPRA’s immediate access provision applies to requests for litigation settlements. Scheeler v. Galloway Tp.

The court reversed a GRC decision which had upheld the denial of a request for the settlement agreement on the ground that the settlement had not been finalized at the time of the request. The document in question was entitled “Release and Settlement Agreement” and apparently consisted simply of the litigant’s release of the Township from all claims he may have against it. The rest of the litigation settlement terms were not in writing, but instead were orally agreed to by the parties’ attorneys.

The court disagreed with the GRC that the litigation had not yet been settled at the time of the request. Based on its conclusion that in fact there was a finalized settlement, the court held that the custodian should have disclosed the release.

Notably, the Appellate Division issued a separate ruling, holding that the release should have been disclosed immediately, under the section of OPRA requiring that immediate access be given to certain information held by public bodies, such as budgets, contracts, bills and employee salaries. The court said that because a release of litigation claims is a contract, this type of document is covered by the “immediate access” requirement.

As a result, even though the custodian provided the release to the requestor within 7 business days, the court held that the custodian unlawfully denied access by not providing it immediately.

No court had ever addressed previously whether a litigation settlement is the type of contract that is subject to OPRA’s “immediate access” section. As I’ll discuss in a future post, I think the Legislature did not intend this statutory provision to apply to settlement agreements.

Although the Scheeler opinion is unpublished, and therefore not binding on other courts, it is binding on the GRC, since the GRC was a party in the case. Consequently, in future cases, the GRC is obligated to hold that a custodian has committed a violation if a request for a settlement agreement is not fulfilled immediately. And as I’ve discussed previously, the GRC takes a hard line on the definition of “immediate access,” so that even a response time of a day or two may be a violation.

I suspect that many custodians will be unable to answer requests for settlement agreements so quickly. Nevertheless, they now face the risk of being penalized by the GRC for violating OPRA in these situations.


Teaneck to Appeal Trial Court Decision Denying Injunction Against Requestor Who Submitted Excessive Requests

According to this article, Teaneck is appealing a trial court ruling that it violated OPRA in seeking to enjoin a requestor who had overwhelmed the township with excessive OPRA requests.

In a previous post on this case, I said that in my view, the trial court erred. The Supreme Court ruled years ago that the courts have the power to grant applications by public bodies to restrain requestors who file excessive, unreasonable public records requests. The Teaneck case, which involved an avalanche of burdensome OPRA requests made for the purpose of harassing township officials, seems to be the exact type of situation the Supreme Court had in mind.

Hopefully, the Appellate Division will issue an opinion in this matter that will confirm that it’s entirely appropriate for public bodies to seek injunctions in cases like this.


Precedential Appellate Division Opinion Holds That Student Records Are Not Accessible Under OPRA

I’ve previously noted the difficult issue of whether OPRA requestors may obtain student records, in light of the privacy accorded to student information by education statutes. The Appellate Division recently answered this question. In a precedential opinion authored by Judge Sabatino, the court said that student records are not accessible under OPRA. L.R. v. Camden City School Dist., etc.

The plaintiffs in this case submitted OPRA requests for records related to special education students from a few school districts, and they indicated that they intended to request these records from every school district in the state. The Appellate Division held that OPRA does not grant public access to these records; instead, it said, the limitations on access to student records contained in the pertinent DOE regulations are controlling.

The court emphasized that anyone requesting such records must comply with the procedures and substantive requirements of the DOE regulations, and it highlighted that student records are not open to everyone; rather, they may be accessed only by the specific entities and individuals listed in these regulations.

The court said it was premature to address any claims for attorney fees made by plaintiffs. This leaves open an interesting question for future cases: given the court’s ruling that the DOE regulation, not OPRA, is the vehicle for obtaining student records, is OPRA’s attorney fee award provision applicable in the event of litigation over access to student records?

GRC: Police Body Camera Footage Is Not Exempt Criminal Investigatory Record

The GRC has issued its first decision on the question of whether police body camera footage is accessible under OPRA. Dericks v. Sparta Twp. (Sept. 29, 2017).

The GRC ruled that the criminal investigatory exemption does not apply to police body camera video concerning a criminal matter, because these recordings are required by law–namely, an Attorney General Law Enforcement Directive–to be made, maintained or kept on file. See this post for a discussion of how the Supreme Court’s Lyndhurst opinion made clear that Attorney General Directives have the force of law for purposes of the criminal investigatory record exemption.

In a footnote, the GRC stated that the Attorney General’s Directive does not provide confidentiality to body camera recordings under OPRA. It noted that the Directive places restrictions on disclosure of these recordings, but interpreted the Directive as saying that the restrictions do not apply when responding to an OPRA request.

The language of the Directive doesn’t seem to support the GRC’s interpretation. I read the Directive as providing that OPRA requests for these records must be referred to the Division of Criminal Justice or the County Prosecutor for a determination of whether the public need for access outweighs the law enforcement interest in maintaining confidentiality.

It’s surprising the GRC chose to deal with the issue of the requirements of the Directive in the Dericks opinion, because it did not need to reach this question in this case. The GRC held that the recording in this case was exempt on another basis–a statute providing confidentiality to records pertaining to juveniles charged with delinquency.

OPRA Cases On The Docket Of Supreme Court’s 2017-18 Term

During its 2016-17 term, the Supreme Court issued 5 OPRA opinions, dealing with many different highly important issues. As the Court begins its new term next week, it currently has only two OPRA matters. But these cases involve several major OPRA issues.

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 the unsettled question of the privacy protection 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?

These cases have not yet been argued, so it’s not clear when the Court will issue opinions in them.

Appellate Division Again Rules That MVR Created Under Police Chief’s Order Is Not A Criminal Investigatory Record

In an unpublished opinion, Ganzweig v. Lakewood Twp., an Appellate Division panel followed the appellate court’s 2016 published opinion in Paff v. Ocean County Prosecutor and held that OPRA’s criminal investigatory exemption does not apply to MVRs that are operated under a local police department’s policy.

Paff and Ganzweig present an issue that the Supreme Court will decide in its upcoming 2017-18 term: whether a police chief’s directive concerning MVRs is “required by law” and therefore does not satisfy one of the statutory requirements for a record covered by the criminal investigatory exemption. Judge Reisner dissented in Ganzweig, disagreeing with the Paff majority opinion’s view that a police chief’s directive meets the “required by law” standard.

The Supreme Court has not yet scheduled Paff for argument. I assume that Ganzweig will also go to the Supreme Court, due to the dissenting opinion. Presumably, the Supreme Court will decide this case together with the Paff case, since they involve the same issue.

Recent Case Law Emphasizes Importance of Attorney General Law Enforcement Directives Under OPRA

Do the Attorney General’s Law Enforcement Directives–policies that apply to all police departments throughout the State–establish exemptions under OPRA? Recent case law has answered this question affirmatively; the Attorney General’s directives are legal requirements that serve as a basis for confidentiality of government records.

The impact of these directives on OPRA requests had been somewhat in question because it was unclear whether such policies are binding legal requirements, and therefore should be treated the same as a regulation or other similar enactment. In the Lyndhurst opinion issued a few weeks ago, the Supreme Court settled this question. It held that these directives, issued by the State’s chief law enforcement officer, have “the force of law for police entities” (quoting and agreeing with the Appellate Division’s opinion in O’Shea v. Twp. of W. Milford).

This means that a confidentiality requirement in an Attorney General Directive is an exemption under OPRA. The Appellate Division and the GRC have reached this conclusion. In a March 2017 opinion, Paff v. Bergen County, the Appellate Division upheld the denial of an OPRA request to a sheriff’s office for the names of complainants and the officers 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.

The GRC takes the same position. See Reagan v. Camden County Prosecutor (July 25, 2017).


Appellate Division: Trial Judges Are Authorized To Impose OPRA’s Fines

The Appellate Division recently held, for the first time, that trial judges have the authority to impose the financial penalties set forth in OPRA for individuals who knowingly violate the statute. North Jersey Media v. Office of the Governor. This opinion upended the practice that had been followed since OPRA’s enactment, under which only the GRC imposed these fines.

This is a very unfavorable ruling for public entities. As discussed here, allowing requestors to bring penalty claims in trial court actions will dramatically increase the risks and costs for public agencies in litigating OPRA cases.

The Appellate Division’s conclusion that OPRA permits requestors to file court complaints demanding that public officials be fined strikes me as incorrect. It creates the odd situation where private plaintiffs may file suit for monetary penalties that are to be paid to the State, not to the plaintiffs. This appears to be an unconstitutional delegation of the State’s power to private parties.

Presumably, the Attorney General will seek Supreme Court review in this case. But for the foreseeable future, public bodies face litigation not just over whether an OPRA request was properly denied, but also over whether employees involved in that OPRA request should be fined.


Appellate Division Rejects Common Law Request For Criminal Investigation Records

In a recent unpublished opinion, the Appellate Division upheld the denial of a request, made under the common law, for all documents pertaining to a criminal investigation. Paff v. NJ State Police.

The court’s decision is unremarkable; it’s based on the well-settled law that the interest in confidentiality of criminal investigations outweighs a requestor’s general interest in getting information about the investigation. What’s interesting about the case is that it confirms what I’ve previously noted–contrary to the press reports hailing the Supreme Court’s Lyndhurst opinion as requiring transparency of police operations, in fact the Supreme Court’s opinion ensures that there will be less public access to most police records.

The Paff court rejected the requestor’s claim that Lyndhurst compelled disclosure of the records in question. Instead, the Appellate Division said, the Supreme Court made clear that typically, the interest in confidentiality of law enforcement investigatory records outweighs the requestor’s interest in disclosure.

I anticipate that Paff is the first of many cases in which courts will rely on Lyndhurst to reject OPRA and common law efforts to obtain law enforcement records.


Supreme Court: Volunteer Fire Companies Are Not Subject To OPRA

Today the Supreme Court issued its fourth OPRA opinion in the past 6 weeks. In Verry v. Franklin Fire Dist. 1, the Court held that volunteer fire companies that are members of fire districts are not entities covered by OPRA. The Court said that although fire districts are subject to OPRA, and they supervise volunteer fire companies, this doesn’t make volunteer companies themselves subject to OPRA.