Author Archives: lscheindlin

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

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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

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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

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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

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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.

Appellate Division Issues Useful Opinion on Dealing with Requests for Attorney Invoices

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OPRA states that attorney bills must be disclosed, but they may be redacted to remove any attorney-client privileged information on them. I’ve always understood this provision to mean that it’s permissible to redact anything on the bill that would reveal something about legal advice or litigation strategy. For the first time, the Appellate Division (in an unpublished opinion) has addressed this aspect of OPRA, and confirmed that this interpretation of the attorney invoice language is correct.

In Mears v. Boro of Lawnside, the custodian redacted “every word of every line item” description of the attorney’s services on the invoices, as falling within the attorney-client privilege. The Appellate Division reviewed the invoices and concluded that none of the entries were covered by the privilege. The redactions here all shielded the type of descriptions that are typically put on an attorney’s bill, such as, for example, review correspondence; participate in phone conference with court, or with identified individuals; and draft letter brief in advance of oral argument. The court stated that these redactions violated OPRA, because the descriptions did not reveal “confidential information, trial strategy, or work
product.”

The Boro had also redacted certain expenses shown on the bills, for filing fees, mailing fees, and a monthly retainer. The court invalidated these redactions as well, again because these expenses did not disclose any privileged information.

Appellate Division Issues Significant Published Opinion on OPRA Litigation and Attorney Fee Awards

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The Appellate Division’s January 24th opinion in Underwood Properties v. Hackensack is the first precedential court opinion on a problematic OPRA practice that often occurs: an attorney submits an OPRA request under his own name, and then the attorney’s 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 involved in lawsuits against Hackensack concerning its redevelopment plan. Separately, Underwood’s counsel submitted, under his own name, OPRA requests to the City for correspondence of various City officials. After the City denied the requests on various bases, Underwood filed a lawsuit, which resulted in some documents being released.

In the trial and appellate courts, Hackensack argued that Underwood lacked standing to file a complaint, because it was not the requestor. The trial judge rejected this argument, on the ground that counsel filed the OPRA requests on behalf of his client and within the scope of his representation. The Appellate Division agreed with this reasoning. It added that OPRA’s goal of access to public records, and the courts’ liberal standing rules, supported allowing the client to pursue the litigation.

I don’t think the general purpose of OPRA and standing policies are relevant here. As I’ve noted previously, OPRA only permits the “requestor” to file a court action challenging a denial of a request, so there’s simply no basis to permit someone who did not make the request to litigate over its denial. This problem doesn’t exist where it’s clear that the client is the requestor, and the attorney simply submitted the OPRA request on behalf of that client. But if that’s the case, the OPRA request should identify the client as the requestor.

In addition to setting the above precedent, Underwood is a useful opinion because it’s one of the few cases in recent years to deal with calculating an appropriate attorney fee award where the requestor achieves only partial success in its OPRA litigation. In 2005, the Supreme Court held that the amount of the award must be based on a “qualitative analysis” of the amount of litigation success achieved by the requestor, but there is little case law applying this analysis. In Underwood, the court upheld the trial judge’s fee award as complying with the required qualitative analysis. The trial judge reduced the amount of fees requested, from about $14,500 to $3750, due to the requestor’s limited suceess in obtaining documents and its failure to vindicate OPRA’s purpose.

A Pending Appellate Division Case Presents Two Important OPRA Issues

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Several municipalities are in litigation with the organization Rise Against Hate over requests for residents’ email addresses. One of these cases, involving Cherry Hill, is pending in the Appellate Division. Cherry Hill appealed the trial court’s ruling that OPRA’s privacy section does not protect email addresses from disclosure.

There is no precedential case law on whether email addresses must be disclosed under OPRA. I think there’s a strong argument that people have a reasonable expectation of privacy in their email addresses, and therefore this information should typically not be obtainable through an OPRA request. However, I’m not confident the court will agree with this position, in view of the extremely limited effect the Supreme Court and the Appellate Division have given to OPRA’s privacy provision in recent cases.

The Cherry Hill appeal presents another important issue, which I’ve never seen raised before: whether a requestor is permitted to refile its OPRA request, after the custodian denied the request and the requestor did not file a court challenge to the denial within the 45-day statute of limitations. The trial judge concluded that a requestor may submit the same request again, despite the failure to meet the statute of limitations, on the ground that OPRA does not prohibit requestors from refiling their requests.

This determination is plainly incorrect. It misses the point that the Supreme Court expressly held that OPRA has a 45-day statute of limitations for requestors who want to challenge a denial in the Law Division. Mason v. City of Hoboken. The trial court’s decision makes the Supreme Court’s decision meaningless, by allowing requestors who fail to meet the complaint filing deadline to simply file the same request again. The result is that there is no statute of limitations–precisely the opposite of what the Supreme Court mandated.

Major OPRA Case Law Expected in 2022

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This year will see at least two Supreme Court opinions on crucial public records issues.

Libertarians for Transparent Govt v. Cumberland County involves the question of whether a settlement agreement between a public body and its employee, which resolves an internal disciplinary action against that employee, is an exempt personnel record. As I’ve previously discussed, this has always been considered to be a confidential personnel record. Will the Supreme Court depart from this longstanding rule?

In the other pending Supreme Court case, Rivera v. Union County Prosecutor, the Court will determine whether police department internal affairs reports at issue, concerning alleged misconduct by a city’s police director, must be disclosed under OPRA and the common law. Since the Supreme Court held in 2020 that police internal affairs records are confidential under OPRA, it seems unlikely it will reverse that position here. I think it’s more likely that this case will focus on whether the records in question should be made public under the common law.

In addition to these Supreme Court opinions, public bodies should expect disputes and litigation related to interpreting some of the cases decided in 2021. I anticipate more claims seeking attorney fee awards for litigating common law record requests, in view of last year’s precedential opinion of the Appellate Division permitting such awards in common law cases. And the extent of OPRA’s privacy protection will continue to be a hot issue; this is currently the subject of a number of pending cases, specifically involving requests for individuals’ email addresses.

2021 OPRA Case Law Review: A Year of Landmark Opinions

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In every year since OPRA’s enactment in 2002, the Supreme Court and Appellate Division have issued opinions with far-reaching impact on OPRA law and procedure. 2021 was no different. Some of the cases decided this year constituted landmark developments in New Jersey public records law.

In Bozzi v. Jersey City, the Supreme Court resolved an issue that municipal custodians have struggled with since OPRA’s enactment, in holding that the names and addresses of those who have obtained dog licenses must be disclosed. The Court’s opinion also addressed, for the first time, the larger question of whether a person’s home address is protected by OPRA’s privacy requirement. The Court effectively concluded that OPRA does not shield home addresses from public disclosure.

In another landmark case, the Supreme Court upheld the Attorney General’s requirement that the names of police officers who have committed serious disciplinary violations must be made public.

The third Supreme Court OPRA opinion, issued in 2021, Banfi v. Mercado, said a police department is required to respond to an OPRA request for electronic information concerning complaints and summonses, where police officers entered such arrest-related information into the Judiciary’s Electronic Complaint Disposition Record (eCDR) system.

The Appellate Division issued a significant opinion in Gannett v. Neptune Twp. The court held that a police officer’s internal affairs file, although exempt from disclosure under OPRA, is subject to disclosure under the common law. This opinion also contained an even more important ruling concerning common law record requests: the court held, for the first time in a published Appellate Division opinion, that successful common law requestors are eligible to be awarded attorney fees.

The other major Appellate Division case was Doe v. Rutgers. In addition to being one of the few cases to discuss OPRA’s provisions relating to higher education student records, the opinion also discusses a situation that many custodians often have confronted–an OPRA request asking for all records related to the agency’s response to that request. The court stated that this was an invalid request, because the records sought did not exist at the time the request was made. And more crucially, the court further indicated that these records would not be disclosable, because they fall within the deliberative process exemption.

Wag the Dog: Supreme Court’s Bozzi Opinion Makes Most Home Addresses Public Under OPRA

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In Bozzi v. Jersey City, the Supreme Court recently resolved a longstanding issue in holding that OPRA requires disclosure of the names and home addresses of individuals from their dog license records. But the impact of the Court’s opinion is not limited to dog owners; the Court effectively ruled that home addresses are not protected from disclosure by OPRA’s privacy requirement.

The majority opinion in Bozzi held that those who obtain dog licenses don’t have even a “colorable claim” to a reasonable expectation of privacy in their names and addresses. This conclusion rests entirely on the dubious assertion that “owning a dog is, inherently, a public endeavor” (emphasis mine). Even assuming this proposition is correct, the flaw with this analysis of the privacy interest, as identified by Justice Pierre-Louis’ dissent, is that “dog owners appearing in public with their dogs do not do so while simultaneously advertising their full names and addresses.” For this reason, as the dissent pointed out, dog owners likely do not envision that the government will turn over this personal information to the public pursuant to OPRA requests.

Unfortunately, the majority opinion did not follow this sensible approach, and instead adopted an analysis that provides virtually no privacy protection for a person’s home address under OPRA. After Bozzi, where there’s no specific statute providing confidentiality to an address in a particular record, OPRA requires disclosure of the person’s address. The only circumstance where a home address would possibly be confidential under OPRA’s privacy section is when the OPRA request for a home address is linked with disclosure of other clearly private information–such as receipt of financial assistance benefits (Matter of Firemen’s etc) or a person’s social security number (Burnett v. County of Bergen).

Apart from such exceptional situations, there appears to be no basis for withholding a home address under OPRA’s privacy provision.