2022 OPRA Case Law Review

Here’s a look back at the most important OPRA opinions issued by the courts this year.

The Supreme Court issued two OPRA opinions in 2022, both in March–Libertarians for Transp. Govt. v. Cumberland County and Rivera v. Union County Prosecutor. In Libertarians, the Court held that an internal settlement agreement between a public employer and its employee is an exempt personnel record, but the portion of the agreement that contains the reason for the employee’s separation from employment must be disclosed. In Rivera, the Court reaffirmed that records of police internal affairs investigations are exempt under OPRA, but may be disclosable under the common law ability to access government records.

See also this post for additional analysis of how these two opinions have a significant impact on OPRA law and practice.

The Appellate Division also issued some major OPRA opinions, addressing issues of first impression:

Underwood Properties v. Hackensack dealt with a common problem in OPRA matters–an attorney, in the course of representing a client, submits an OPRA request under his own name, rather than the client’s name, and then the client files a complaint over the denial of the request. The court held that the client has standing to file the OPRA litigation, despite not being identified as the requestor in the OPRA request.

Underwood is also one of the few published opinions that addresses the calculation of a requestor’s attorney fee award.

C.E. v. Elizabeth Public Sch. Dist. held that settlements of OAL cases involving IDEA special education challenges must be disclosed under OPRA.

ACLU v. CPANJ held that the County Prosecutors Association of New Jersey is not an agency subject to OPRA.

Appellate Division: The County Prosecutors Association of NJ is Not an Agency Subject to OPRA

The Appellate Division today issued a precedential OPRA opinion. Deciding an issue of first impression, the court held that the County Prosecutors Association of New Jersey (CPANJ) is not a public agency under OPRA. ACLU v. CPANJ.

CPANJ is a 501(c) nonprofit made up of the 21 county prosecutors. The organization characterizes its goal as “the promotion of the orderly administration of criminal justice within the State and the fair and effective enforcement of the constitution and laws of this State through the cooperation of all law enforcement agencies….” In its opinion, the Appellate Division describes CPANJ as a means by which the county prosecutors fulfill their obligation to aid the Attorney General, specifically by “participat[ing] as stakeholders in the drafting of directives and guidelines to be issued by the Attorney General, which
thereafter are binding on the prosecutors.”

The ACLU submitted OPRA requests for various records to CPANJ. The court held that CPANJ correctly denied the requests on the basis that it is not a public agency under OPRA. The crux of this holding is that CPANJ is not (per OPRA’s definition of a covered public body) an “instrumentality” created by “political subdivisions.” The court said that CPANJ was formed by prosecutors, not counties, and prosecutors are not political subdivisions. And CPANJ itself has no statutory powers. The Appellate Division concluded: “[W]hile CPANJ has a role in formulating criminal justice policy, it does so as a private entity that has no governmental authority.”

For these reasons, the court also held that records of CPANJ are not subject to the common law right of access to government records.

A puzzling aspect of this case, not addressed by the court, is why the ACLU even bothered to pursue this litigation. Since the ability already exists, under OPRA and the common law, for requestors to obtain information about prosecutors’ actions, there seems to be no need for public access to CPANJ records.

According to the court’s opinion, the ACLU sought records from CPANJ to investigate how prosecutors and their staff members “coordinate their efforts on criminal justice policy;” determine how these efforts are funded; and “monitor prosecutorial transparency and accountability….” But this is precisely the type of information that is obtainable from agencies that are subject to OPRA, such as prosecutors offices and the Attorney General’s Office.

Appellate Division: Rutgers Football Team’s “All-22” Video is Exempt from OPRA

The Appellate Division has issued an interesting opinion on whether OPRA requires release of Rutgers’ “All-22” videos of its football games. Caroff v. Rutgers. This type of video is used by professional and college football teams because it shows what all players did during a play. According to the court, the specific video requested from Rutgers is an “edited, compilation of digital video recordings” of a football game, with footage showing “a wide-angle sideline shot focused to include all twenty-two players on the field,” plus a second shot “focused to capture the line formation for each given play.”

The Appellate Division held that this video is exempt from disclosure under OPRA under three exemptions: proprietary information; disclosure that would give competitors an advantage; and exempt under federal law.

The court determined that the video is proprietary, based on Rutgers’ explanation that the coaching staff uses the video in evaluating and refining the team’s plays. In addition, the football program “obtain[s] scouting information on their opponents by providing access to their proprietary All-22 videos to their opponents in exchange for their opponents’ reciprocal grant of access to the opponents’ proprietary All-22 videos.”

The necessity of trading All-22 videos with opponents also means that the competitive disadvantage exemption is applicable. Making the videos public would destroy Rutgers’ ability to obtain their competitors’ videos. The court explained that if Rutgers’ videos were publicly accessible through OPRA, then other teams would simply obtain them that way, and would have no incentive to exchange videos with Rutgers.

The court also said that the video is exempted from disclosure under federal law, because it is a copyrightable work of Rutgers. This is a ruling of first impression–there is no case law dealing with the issue of whether a record that has been copyrighted may be withheld under OPRA. However, in addition to the opinion being unpublished, and therefore not precedential, it contains no analysis of the interplay between OPRA and copyright law. The court simply stated that the video fell within OPRA’s exemption for federal law confidentiality, due to its status as a copyrighted work.

Supreme Court to Review Whether Attorney Fees May Be Awarded in Common Law Records Cases

The Supreme Court will decide a longstanding, problematic issue in government records law: whether a requestor who obtains records through a common law request may be awarded attorney fees.

In a 2021 opinion, Gannett v. Tp. of Neptune, the Appellate Division held that a successful common law requestor may receive an attorney fee award. However, the court denied a fee award in this case, based on the conclusion that the request was not the catalyst for the eventual release of the records in question. See this post for a summary of the opinion.

The Supreme Court granted certification in this case last week. According to the Supreme Court’s website, the Court will consider: “In this lawsuit seeking police department internal affairs records, was plaintiff entitled to attorneys’ fees and does the catalyst theory apply to a common law right of access claim?”

No court has ever squarely held that there is a legal basis for common law requestors to receive attorney fee awards. Instead, as I’ve discussed previously (in this 2021 post), the argument that common law requestors are entitled to attorney fees is based exclusively on dicta; specifically, a brief comment made in a Supreme Court opinion in a 2008 case in which the Court was considering only an OPRA request, not a common law request. In Gannett, for the first time, the Court will be able to review the common law attorney fee question fully and resolve the uncertainty over this important issue that has existed since 2008.

Appellate Division: An OPRA Request Submitted to Public Body’s Outside Attorney is Not Valid

On June 21, the Appellate Division issued an opinion on a novel issue: whether an OPRA request may validly be submitted to the outside attorney for a public body, rather than to the custodian. The court held that such a request is invalid, because OPRA requires that requests be made to the custodian of records. S.W. v. Elizabeth Board of Ed.

The requestor in this case sought records of the Elizabeth Board of Education by sending an OPRA request to the Board’s “solicitor.” The opinion doesn’t say, but I understand this term to mean the outside attorney representing the Board, rather than an attorney who is a Board employee. The request was denied because it had not been sent to the custodian, nor to an officer, employee, or office of the school district.

The court upheld this denial as consistent with OPRA’s clear requirement that a request must be submitted to the agency’s custodian. It also rejected the claim that the Board’s attorney was covered by the statutory requirement that “an officer or employee of a public agency” who receives an OPRA request must forward the request to the custodian. Plainly, an outside attorney representing the agency is not an “officer or employee” of the agency.

The Appellate Division also addressed an issue that I discuss in my program on OPRA and the Rules of Professional Conduct, but that’s never been considered previously by a New Jersey court: whether RPC 4.2 prohibits a party that’s sued a public agency from submitting an OPRA request directly to the agency. The RPC prohibits direct communication with a client known to be represented by counsel; is submission of an OPRA request to the custodian, where the agency is represented by an attorney, covered by this rule? The court said it is not, emphasizing that the RPC actually exempts from its prohibition communications with the government, such as OPRA requests. Specifically, RPC 4.2 contains an exception for when the law authorizes such direct contact, to ensure “a citizen’s right of access to government decision makers.”

This is the first time a New Jersey court has addressed this ethics issue (although courts in other states have reached the same conclusion with regard to their public records laws and the RPCs). It’s unfortunate that the court’s opinion is not published, but it nevertheless provides helpful guidance.

New Precedential Appellate Division Opinion: Settlements of IDEA Cases in the OAL Are Accessible under OPRA

The Supreme Court ruled in 2019 that student records may not be accessed under OPRA (although they may be disclosable as permitted by certain Department of Education regulations). L.R. v. Camden School Dist. In a published opinion issued on May 18, 2022, the Appellate Division held that L.R. does not apply to settlements of OAL cases involving IDEA special education challenges. As a result, these settlements must be disclosed under OPRA. C.E. v. Elizabeth Public School Dist.

The court noted that L.R. did not apply because the IDEA was not at issue in that case. The court therefore determined that the applicable IDEA regulations governed the request in C.E. These regulations designate the OAL to hear special education complaints under the IDEA, and say that settlements of these cases are incorporated into an ALJ’s initial decision approving the settlement. Federal law requires making these decisions public, after removal of any student-identifying information.

In accordance with these requirements, the Appellate Division upheld the release under OPRA of the requested settlements, with identifying information redacted.

Analysis: The Supreme Court’s Recent Opinions Strengthen OPRA Exemptions

In March, the Supreme Court issued two highly consequential OPRA opinions. These cases are particularly significant because, in both matters, the Court rejected arguments that the applicable OPRA exemptions should be cast aside. Instead, the Court ensured the continuing viability of the exemptions for personnel records and police internal affairs records.

In Libertarians for Transparent Govt. v. Cumberland County, the requestor, the ACLU, and other organizations asked the Court to disregard OPRA’s personnel exemption and hold that the public is entitled to disclosure of all settlements of internal disciplinary actions. The Court declined this invitation to weaken the personnel exemption. Instead, it reiterated the longstanding requirement of OPRA that public employee personnel records–which include records of disciplinary settlements–are strictly confidential. A limited exception to this rule is that OPRA expressly designates certain personnel information as public, including the reason for the employee’s separation from employment.

In Rivera v. Union County Prosecutor, the Court similarly rejected the requestor’s main argument–that OPRA does not exempt police internal affairs records from disclosure. The Court unambiguously held that these records are exempt under OPRA, thereby precluding automatic public access to them. The Court said such records are only potentially disclosable through a common law records request.

Thus, these cases are important in two ways: they provide guidance on crucial OPRA issues, and they conclusively reject efforts to undermine OPRA’s confidentiality guarantees.

Supreme Court Holds That Police Internal Affairs Reports are Confidential Under OPRA, But May be Accessed Under The Common Law

The Supreme Court issued its second OPRA opinion in March, Rivera v. Union Prosecutor. As I predicted, the Court held that records of police internal affairs investigations are exempt under OPRA, but ordered release of the internal affairs report in question under the common law.

Prior Supreme Court opinions indicated that internal affairs records are not accessible under OPRA. In Rivera the Court put to rest any possible claim that these records may be obtained through an OPRA request. It held that internal affairs reports are exempt because the Attorney General’s Internal Affairs Policy and Procedure, which has the force of law, requires their confidentiality.

The Court also stated, consistent with settled law, that this type of exempt record may be accessed under the common law, if in the particular situation, the interest in disclosure outweighs the need for confidentiality. The Court reiterated the important confidentiality considerations that must be taken into account in conducting this balancing, and it also provided guidance on the factors that may favor disclosure of an internal affairs report.

The Court held that the report at issue in the case should be made public under the common law, as it concerned a matter of considerable public interest, involving racist and sexist misconduct by the City of Elizabeth Police Director. The Court remanded the case to the trial court to conduct the common law balancing test to determine specifically what portions of the report should be made public. Notably, the Court also stated that the trial court must ensure redaction of information in the report that warrants confidentiality, including names of complainants, witnesses, informants, and cooperators; personal information of officers and other individuals; and other information protected by privacy interests.

Supreme Court: The Portion of a Personnel Record that Shows the Reason for an Employee’s Separation from Employment Must Be Disclosed

The Supreme Court recently reaffirmed the requirement of OPRA that certain information found in a personnel record, including the reason for an employee’s separation from public service, is not confidential. As a result, the Court ordered disclosure of the portion of an exempt personnel record, an internal agency settlement agreement, that showed the reason for the separation of a county employee. Libertarians for Transparent Govt v. Cumberland County.

The Court’s opinion breaks no new ground, as OPRA itself, as well as prior Supreme Court precedent, is clear that certain personnel information is public; specifically, “an individual’s name, title,
position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received….” Because part of the settlement agreement in question in Libertarians showed the reason for the employee’s separation, the Court determined that the County erred in withholding the entire document, and ordered it to release a redacted version that would disclose the separation information.

Crucially, the Court rejected the main argument advanced by the requestor–that a settlement resolving an internal disciplinary action is not an exempt personnel record. In other words, the requestor asked the Court to hold that all such settlements are completely public. This result would be contrary to long settled law, and would cast doubt on the confidential status of all other personnel records.

The Court refused to go down this path. It unambiguously stated that all internal settlement agreements are personnel records that are not disclosable. Only the portion containing the separation reason must be disclosed.

A Reminder from the Appellate Division: Custodians May be Fined Only if They Knowingly and Willfully Violate OPRA

As I noted in 2019, there are few court opinions addressing what type of conduct will warrant fining a records custodian under OPRA’s penalty provision, N.J.S.A. 47:1A-11. In a recent unpublished opinion, McMorrow v. Boro of Englewood Cliffs, the Appellate Division emphasized that a penalty may not be imposed simply because the custodian erred in responding to the OPRA request. The statute requires more–a penalty is permissible only where the custodian knowingly and willfully violated OPRA, meaning that she had actual knowledge that her actions were wrongful, and these actions exhibited “conscious wrongdoing.”

In McMorrow, the trial judge ruled that the custodian violated OPRA in several respects in responding to a request. The trial judge also imposed a $2500 personal fine upon the custodian for unreasonably denying access to the requested records in a knowing and willful manner.

The custodian appealed, and argued only that the trial judge erred in penalizing her. She did not challenge the ruling that there were OPRA violations in responding to the request. As a result, the validity of the OPRA response was not at issue; the Appellate Division focused exclusively on the trial judge’s determination that the custodian should pay a fine.

The court reversed this ruling. It concluded that the trial judge erred by basing the decision on her view that the custodian should have handled the OPRA request in a better way, rather than on whether there was any conscious wrongdoing by the custodian. For example, the trial judge imposed the penalty partly because the custodian, citing her limited knowledge of the Boro’s computer system, needed an IT consultant to search for requested emails, and charged a special service fee for this person’s time and effort. The trial judge felt that the custodian should have been able to conduct the email search without the consultant’s involvement.

The Appellate Division concluded that the custodian’s limited knowledge of the computer system did not support a finding that she knowingly and willfully violated OPRA. The record simply did not show any conscious wrongdoing by the custodian, and therefore she could not be fined.