The Supreme Court recently granted review in ACLU v. County Prosecutors Assn of NJ, to determine whether this organization of county prosecutors is a public agency that is subject to OPRA.
The Appellate Division held that CPANJ is not subject to OPRA. As explained in this post, the court determined that it is a private entity, formed by prosecutors, not political subdivisions, and lacking governmental authority.
The Third Circuit’s recent non-precedential opinion in Doe v. Rutgers is worth noting simply because it’s so rare for a federal court to deal with OPRA issues.
The case began with Doe filing a complaint in state court concerning Rutgers’ response to his OPRA request. Doe complained that Rutgers denied access to some records, and he also challenged Rutgers’ assessment of a special service charge of $7020 with regard to other records requested.
Rutgers removed the case to federal court. The Third Circuit held that the federal court properly had jurisdiction, because although Doe filed his complaint under OPRA, his principal claim was that the special service charge violated a federal law, FERPA.
The court affirmed the dismissal of the complaint on various grounds. One claim was dismissed for failure to meet OPRA’s 45-day statute of limitations. With regard to the FERPA claim, the court determined that this statute was not violated because the records sought were not educational records within the meaning of FERPA.
The court also addressed whether the special service charge imposed by Rutgers was proper under OPRA. It upheld the charge as reasonable and permitted by OPRA. The court noted there were 4608 pages of responsive records, and “each page had to be reviewed and redacted by a Rutgers staff member to prevent disclosure of other students’ confidential information.”
The Appellate Division issued an interesting published opinion that deals with a discovery issue, but also contains useful guidance for handling OPRA requests that involve searching employee cell phones for responsive records. The court made clear that it is up to the the employees themselves to conduct the search of their phones.
Lipsky v. NJ Assn of Health Plans dealt with a dispute over a discovery request to a State agency for records potentially contained within agency employees’ cell phones. The Appellate Division held that a party in pending litigation may not compel a non-party State agency to turn over its employees’ State-issued and personal cell phones to the party’s expert for forensic examination. The court determined that this violates civil discovery legal requirements as well as the employees’ constitutional privacy rights.
In explaining the reasons why the trial court’s order was erroneous, the court relied in part on OPRA law. It noted that under the discovery rules, the agency has no obligation to produce data from employees’ devices unless it has “possession, custody or control” over that data. Under OPRA, the court said, the agency only has such possession, custody or control over the government records that are within the employees’ phones. While these records are subject to disclosure under OPRA, the court recognized that employees’ phones typically also contain much personal, confidential information which is not a government record.
The Appellate Division emphasized that public employees have strong privacy interests in their phones’ contents, so where there’s an OPRA request (or discovery demand) for records from employees’ phones, it is improper for the agency to search the device for responsive records. Instead, to protect the privacy interests at stake, the agency must ask employees to conduct the search of their devices for responsive records.
This is the first time a court has directly addressed, in a published opinion, how an agency should handle an OPRA request that involves searching an employee’s cell phone.
The Appellate Division’s recent opinion in Owoh v. Boro of East Newark involved the unfortunate situation of a requestor pursuing (and losing) an entirely unnecessary appeal.
The case involved requests to three different municipal police departments for electronic information concerning complaints and summonses. The GRC ruled that the departments properly denied these requests, applying a published Appellate Division opinion, Simmons v. Mercado, which held that police departments are not the custodians of the records in question.
However, at that time the Supreme Court was reviewing whether this Appellate Division decision was correct. During the pendency of the GRC case, the Supreme Court had granted a petition for certification in Simmons. The GRC could have temporarily suspended its review of the Owoh appeals, pending issuance of the Court’s opinion in Simmons, which would have been dispositive of the GRC case. Instead, for reasons not explained in the Appellate Division opinion, the GRC simply decided the case without waiting for the Supreme Court’s resolution of Simmons.
The Supreme Court issued its Simmons opinion less than a month later. It reversed the Appellate Division and held that police departments must disclose complaint-summonses records.
The effect of this opinion, of course, was that the police departments would have to grant the OPRA requests made in Owoh. The requestor could have obtained the records expeditiously simply by submitting new OPRA requests to the police departments, relying on the Supreme Court’s opinion. But it did not do so; instead, it appealed the GRC decision, arguing that the Supreme Court’s opinion required reversal of the agency’s ruling. The Appellate Division rejected this argument, concluding that the GRC decision was correct at the time it was issued, and there was no basis to apply the Supreme Court’s subsequent opinion to the GRC case retroactively.
As can be seen, this appellate litigation was unnecessary. The GRC could have precluded it by waiting for the Supreme Court to resolve the issue, and the requestor could have avoided it by submitting a new OPRA request.
This is a prime example of a problem I’ve previously discussed– that public bodies often must face pointless OPRA litigation.
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.
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.
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.
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.
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.
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.