Category Archives: Supreme Court cases

Supreme Court To Decide Another OPRA Case

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The Supreme Court recently granted review of a case to determine 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. Libertarians for Transparent Govt v. Cumberland County.

For many decades, it has been settled law in New Jersey that an internal disciplinary action taken by a public employer against its employee is a personnel record of that employee, and therefore cannot be disclosed. The Supreme Court would effectively abolish this rule if it were to determine that the internal resolution of such a disciplinary matter, through a settlement between the employer and employee, is not covered by OPRA’s personnel exemption.

Libertarians is the fourth OPRA matter currently pending before the Supreme Court.

Major Supreme Court OPRA Opinions Coming in 2021

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There are going to be some important developments in OPRA law in 2021, as the Supreme Court is currently considering three cases involving OPRA issues.

-Bozzi v. Jersey City

The specific question in this case–whether OPRA requires disclosure of the home addresses of individuals who applied for a pet license–is significant because it’s one that frequently confronts municipalities. But the case also presents broader issues of far-reaching impact: do people have a reasonable expectation of privacy in their home address information that’s in the possession of the government? If so, does OPRA’s privacy exemption protect home addresses and similar information?

–Simmons v. Mercado

This case involves an issue that has never been dealt with by the courts, but is of critical importance to many OPRA custodians: when an agency has the ability to access another agency’s database, is it required to answer OPRA requests for information contained in the database?

–In re AG Law Enforcement Directive

This appeal concerns the validity of the Attorney General’s July 2020 Law Enforcement Directive that requires, for the first time, the public disclosure of the names of police officers who have committed serious disciplinary violations. The Court will need to consider the tension between this requirement and OPRA’s personnel exemption, which has always been held to preclude the release of the names of disciplined public employees.

2020 Case Law Review–A Year of Major OPRA Court Cases

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Despite the pandemic, the courts issued a surprisingly large number of significant OPRA opinions during 2020. Here is a quick review of these rulings.

There were two cases involving the critical question of public access to police internal affairs records. The Supreme Court ruled that these records are not accessible under OPRA. FOP v. City of Newark. However, in the summer of 2020 the Attorney General created an exception to this rule, adopting a policy that requires law enforcement agencies to disclose the identities of disciplined officers. See this post for a summary of the precedential Appellate Division opinion (now under review by the Supreme Court) upholding the policy’s validity.

The Supreme Court also granted review of two other 2020 Appellate Division that dealt with important OPRA issues: Bozzi v. Roselle Park and Simmons v. Mercado. In Bozzi, the court determined that OPRA’s privacy provision does not protect against the disclosure of home addresses that people have provided to the government. In Simmons, the court said, in a matter of first impression, that when an agency has access to another agency’s database, it is not the custodian of that system, and therefore cannot be required to answer OPRA requests for information contained in the database.

And there were three more precedential Appellate Division OPRA opinions:

–IMO Application for Med. Marijuana ATC for Pangaea, etc. –a public body may withhold disclosure of the names of the individuals who reviewed applications that were submitted to the public body in a competitive process.

–Libertarians for Transparent Govt. v. Cumberland County–a settlement agreement between a public body and its employee, which resolves an internal disciplinary action against that employee, is exempt from disclosure as a personnel record.

–Digital First Media v. Ewing Tp.–a Use of Force Report involving a juvenile must be disclosed under OPRA, with redactions to protect the juvenile’s identity.

Supreme Court Grants Review of Attorney General’s Directive on Disclosure of Names of Disciplined Officers

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As anticipated, the Supreme Court today granted review of the challenge to the Attorney General Directive that requires disclosure of the names of law enforcement officers who have been disciplined. The Court ordered acceleration of the case, with all amicus briefs to be filed no later than December 15th.

See this post for a summary of the Appellate Division opinion in the case, in which the court upheld the validity of the directive.

Supreme Court to Review Another OPRA Case

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2021 is shaping up to be a year of major developments in OPRA law, with the Supreme Court reviewing three OPRA cases.

A few weeks ago, the Supreme Court decided to resolve the long unsettled issue of whether home addresses must be disclosed under OPRA, and it will most likely soon be reviewing the validity of the Attorney General’s requirement that the names of disciplined police officers be made public.

And last week, the Court granted review in another OPRA matter, Simmons v. Mercado. The Court’s website states that the question in the case is whether “complaints and summonses in the State’s Electronic Complaint Disposition Record (ECDR) system [are] subject to production under the Open Public Records Act?”

This bland statement doesn’t reflect the real importance and broad scope of this matter. As I discussed in this post, the case deals, for the first time, with an OPRA issue that affects all agencies: is an agency that has access to another agency’s database, but is not the custodian of that system, required to answer OPRA requests for information in that database?

Supreme Court to Review Whether OPRA Requires Disclosure of Home Addresses

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The Supreme Court recently granted review of a case to decide a longstanding, unsettled OPRA issue: whether OPRA’s privacy provision protects against the disclosure of the home addresses of individuals who provide this information to the government when applying for a pet license. Bozzi v. Jersey City.

In Bozzi v Jersey City, the Appellate Division held, relying on its precedential opinion in Bozzi v. Roselle Park, that OPRA’s privacy exemption does not ever apply in this situation, because people have no reasonable expectation of privacy in their name and address information when they apply to the municipality for a dog license. As I noted in my post about this opinion, the court’s ruling doesn’t just affect OPRA requests for pet license records; the Appellate Division interpreted OPRA’s privacy provision to mean that public bodies may not deny the disclosure of names and home addresses that are in any government record.

Accordingly, this case requires the Supreme Court to determine the meaning and scope of OPRA’s privacy requirement, and as a result, the Court’s opinion will have a significant impact on a wide range of OPRA requests.

Supreme Court: Internal Affairs Records Are Confidential

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The Supreme Court has settled the longstanding question of whether police internal affairs records are accessible under OPRA. In ruling on the validity of a Newark ordinance that created a civilian board to investigate citizens’ complaints of police misconduct, the Supreme Court emphasized that all records of such investigations are confidential. FOP v. City of Newark.

The Court based this conclusion on the Attorney General’s internal affairs policy. The Court held that this policy, which includes strict confidentiality mandates for all information concerning police misconduct investigations, must be followed. This determination is consistent with the Court’s prior case law in OPRA matters, which states that Attorney General law enforcement policies constitute binding legal requirements that establish exemptions under OPRA.

Interestingly, the Court noted its awareness that the Attorney General has recently changed the internal affairs policy to allow public disclosure of the identities of some disciplined officers, but said it was not addressing this or expressing a view regarding the revised policy. I presume the Court made this statement because it is mindful that it will soon be reviewing the unions’ challenge to this new policy, which is currently before the Appellate Division.

2020 Will See Major OPRA Court Opinions Affecting Law Enforcement Agencies

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The Supreme Court will hear argument this year in two separate cases that challenge longstanding OPRA law protecting the confidentiality of law enforcement officers’ personnel information. The requestors in these cases essentially seek to have the Supreme Court hold that OPRA’s personnel exemption doesn’t apply to law enforcement officers.

FOP v. City of Newark raises the issue of whether records of police internal affairs investigations are entirely exempt under OPRA. And the requestor in Libertarians for Transparent Govt. v. State Police contends that OPRA compels the disclosure of the name of law enforcement officers who were terminated for misconduct.

The Supreme Court’s opinions in these two cases will obviously have a major impact on law enforcement employees. But the treatment of the personnel records of all other types of government employees also is at stake in these cases. The Court is being asked to interpret OPRA’s personnel exemption, which does not differentiate between law enforcement and other public employees. As a result, the Court’s ruling will necessarily affect access to all personnel information under OPRA.

Supreme Court to Review a Second Case on the Confidentiality of Police Personnel Information

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Less than two weeks ago, the Supreme Court granted review of a case to consider whether OPRA’s personnel exemption bars disclosure of the name of a state trooper who was fired for misconduct. The Court recently granted review of a second case, FOP v. City of Newark, which similarly involves the application of OPRA’s personnel exemption to police officers accused of misconduct.

FOP v. City of Newark concerns the validity of a Newark ordinance creating a civilian board empowered to investigate citizens’ complaints of police misconduct. As I discussed here, the Appellate Division struck down one part of the ordinance, allowing public disclosure of the identities of the complainants and the affected police officers, noting that this conflicts with OPRA’s requirement that personnel records are confidential.

Supreme Court To Review Scope Of OPRA’s Personnel Exemption

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The Supreme Court recently announced it will review an OPRA case with major implications for the privacy of public employees’ personnel records. Libertarians for Transparent Govt. v. NJ State Police.

The Court’s website states the issue in the case is whether OPRA’s personnel exemption “require[s] disclosure of the name of a state trooper listed in the Office of Professional Standard’s annual report to the Legislature as having been terminated for misconduct?”

The Appellate Division upheld the denial of this request based on OPRA’s exemption that prohibits public disclosure of personnel information. Its straightforward rationale was that revealing the trooper’s name would disclose the precise information made confidential by OPRA’s personnel exemption–the fact that the employee was disciplined.

It’s not clear why the Supreme Court would want to review this unambiguous OPRA provision. It’s possible the Court wants to consider creating a new exception that would grant the public access to disciplinary information about law enforcement officers. Or, perhaps it recognizes that there’s a need for a precedential opinion upholding personnel privacy; as I’ve discussed, OPRA requestors often demand disclosure of personnel information, despite the clear legislative statement that such information is confidential.