Category Archives: Privacy

Supreme Court Schedules Oral Argument In OPRA Case

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The Supreme Court announced today that on January 18 it will hear argument in the OPRA case of IMO NJ State Fireman’s Assn Obligation to Provide Relief Applications.

This matter involves two important issues: (1) whether public bodies may file declaratory judgment OPRA actions, and (2) whether the records in question are confidential under OPRA’s exemption for privacy.

As I’ve discussed previously, I think the Court’s resolution of the second question may have the most far-reaching impact, as it will provide much needed guidance on the extent that OPRA protects individuals’ privacy interests

Supreme Court To Review A New OPRA Case

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Today the Supreme Court added yet another OPRA case to its docket–the sixth one in the past year. In Paff v. Ocean County Prosecutor, the Court will consider two issues: (1) Does the criminal investigatory record exemption apply to a police dash cam video; and (2) If the video is subject to disclosure, can it be withheld due to the arrestee’s privacy interest?

The Court is already reviewing the first question in the Lyndhurst case; as explained here, it was obligated to accept review in the Paff case because there was a dissent in the Appellate Division on the criminal investigatory record issue. I expect that the Court will resolve the issue in Lyndhurst, since that case has already been argued.

The real importance of Paff v. Ocean County Prosecutor lies in the fact that the Court decided to grant review of the privacy question. The issue of the privacy rights of individuals shown in police dash cam videos is of great interest in New Jersey as well as throughout the country. And it will also be extremely significant, for OPRA  law in general, to have guidance from the Supreme Court on how to interpret and apply OPRA’s privacy exemption.

I’ve criticized the Appellate Division’s opinion in Paff for its mistaken ruling that people shown in police dash cam videos have no reasonable expectation of privacy. Hopefully, the Supreme Court will correct this erroneous holding.

OPRA and Home Address Privacy

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A few weeks ago, I made a presentation to an audience of about 100 government attorneys and OPRA custodians on OPRA’s privacy requirements. The attendees had questions on a variety of topics, but many were particularly concerned about how to handle OPRA requests for home addresses. As I’ve pointed out previously, New Jersey courts have never resolved the question of whether OPRA requires disclosure of individuals’ home addresses.

The situation is different in Pennsylvania, which has a public records statute that is similar to OPRA. On October 18, 2016, the Pennsylvania Supreme Court held that under this statute, home addresses are protected by individuals’ privacy interests. PSEA v. Commonwealth of Pa. In upholding the denial of a request for the addresses of public employees, the Court conducted a balancing test and determined that the strong privacy right of employees in their home addresses outweighs the nonexistent public interest in disclosure of this personal information.

Supreme Court: People Shown In Police Camera Videos Have Privacy Rights

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In a recent post, I pointed out that in Paff v. Ocean County Prosecutor, the Appellate Division rejected a privacy challenge to the disclosure of a police vehicle video under OPRA, based on the incorrect premise that “[d]rivers and passengers in vehicles operating on public roadways do not have a reasonable expectation of privacy in an MVR recording.” In an opinion issued today, in an unrelated case, the Supreme Court confirmed that the appellate panel’s premise is erroneous.

The Supreme Court case, State v. Stein, dealt with discovery in a municipal court DWI prosecution. The Court held that police video recordings of the defendant, whether from a dashcam or made at a police station, must be provided to the defendant in discovery. The Court also stated that a judge may redact any portion of the video that “captures people not relevant to the proceedings and whose privacy rights may be infringed….”

Stein is not an OPRA case, so the Supreme Court did not mention OPRA or the Paff opinion. Still, this case will have a significant impact on future OPRA privacy claims concerning police camera videos. The Supreme Court’s recognition that these videos include people whose privacy rights may be infringed is at odds with the Paff opinion’s belief that no person in a vehicle has a reasonable expectation of privacy with regard to the videos.

However, because Stein is not an OPRA case, for the time being, police video OPRA privacy claims will be governed by the incorrect standard set out in the Paff Appellate Division opinion.

Appellate Division Upholds Confidentiality of Employee Outside Activity Records

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It’s clear that outside activity records of public employees are exempt under OPRA. In an unpublished opinion issued today, the Appellate Division emphasized that these records also are typically not accessible under the common law. New York Public Radio v. Gov. Office.

The requestor in this case sought outside activity notifications submitted to the Governor’s Office’s ethics liaison officer. The trial judge ruled that these are exempt under OPRA because they are personnel records, but ordered disclosure under the common law. The Appellate Division disagreed. It held that the significant privacy interest of employees in their outside activities  outweighs the limited public interest in disclosure of this information.

The court also noted the importance of maintaining the confidentiality of ethics communications, to ensure that public employees will not be deterred from making such inquiries.

The Appellate Division also dealt with a separate OPRA request that presented the issue of whether the deliberative process privilege applied to a “Town Priority List” used by the Governor’s Office. The appellate court again reversed the trial court’s disclosure order. It ruled that this list was covered by the deliberative process privilege, in that it was a key component of the Governor’s Office’s decisionmaking process regarding allocation of resources.

 

Appellate Division Upholds Privacy Of Home Addresses

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Over the past week, the Appellate Division has issued two OPRA opinions with strikingly different views of individuals’ privacy rights. The Appellate Division’s recent police dashcam video opinion,  discussed here, dealt a blow to privacy interests in ruling that people shown in such videos have no reasonable expectation of privacy. A few days later, a different Appellate Division panel upheld privacy rights in concluding that home addresses may be entitled to privacy protection under OPRA. Brennan v. Bergen County Prosecutor’s Office.

The issue in the case was whether Bergen County had to disclose the names and addresses of people who bid at an auction of sports memorabilia held by the County. (The memorabilia had been seized from an individual by the prosecutor’s office). The documents showing the names and addresses were non-exempt government records, but the court held that OPRA’s privacy provision rendered this personal information confidential.

The court said that the bidders had a reasonable expectation that their names and addresses would be private. Notably, the court rejected the argument typically expressed by requestors seeking home addresses, that there’s no privacy interest because home addresses are publicly available. The court emphasized that there is a strong privacy interest when name and address is linked with other information about an individual; in this case, the additional information was that the person bought memorabilia, indicating that he may have a valuable collection. The court determined that the bidders had a genuine concern that they could become the targets of theft.

The court also noted another significant factor favoring privacy: the absence of confidentiality would deter bidders from entering an auction, thereby harming governments’ abilities to hold auctions to generate income.

The court concluded that these confidentiality factors outweighed the requestor’s limited interest in disclosure of the names and addresses. The panel reached the same result with regard to the common law claim for disclosure of this information.

As this blog has previously noted, there is little case law guidance on whether home addresses are protected under OPRA. Although the Brennan opinion is unpublished, it is still an extremely important case in showing that home addresses are entitled to privacy protection.

Appellate Division’s New Dashcam Opinion: A Blow To Privacy Rights

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The Appellate Division’s recent opinion in Paff v. Ocean County Prosecutor, requiring disclosure of police dashcam videos, turns primarily on whether such videos are criminal investigatory records under OPRA. But the court also held that the footage requested could not be withheld to protect the privacy interests of the people in the video. The court showed surprisingly little regard for citizens’ privacy rights in reaching this conclusion.

The key to the privacy ruling was the court’s determination that “[d]rivers and passengers in vehicles operating on public roadways do not have a reasonable expectation of privacy in an MVR recording.” This is simply incorrect–surely drivers and other individuals have a reasonable expectation that their conversations with a police officer will be private, and will not be available to be placed on YouTube for anyone to view.

The court said that there is no harm caused by widespread disclosure of these videos because the public has a right to see them under OPRA. This statement begs the question that must be decided whenever a privacy interest is at stake: whether a person’s reasonable expectation of privacy regarding the specific record outweighs the need for public access to that record. OPRA’s privacy requirement is meaningless if, as the court suggested, there can be no harm caused by the disclosure of a government record.

These statements by the Appellate Division effectively mean that a valid privacy claim cannot be made when there is an OPRA request for a dashcam video. Hopefully, when the Supreme Court reviews this case, it will correct this unfortunate restriction on privacy rights.

 

 

Appellate Division Upholds Confidentiality of Victims’ Records

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In an unpublished opinion issued today, the Appellate Division affirmed the GRC’s decision that a convicted felon may not obtain records pertaining to his victim and the victim’s family. Killion v. Hammonton Police Dept.

I believe this is the first appellate opinion dealing with OPRA’s provision (N.J.S.A. 47:1A-2.2) that a person convicted of an indictable offense may not have access to government records containing personal information related to the victim or the victim’s family. However, the opinion does not analyze this provision. Apparently, it was undisputed that the records in question fell within section 2.2; instead, Killion argued that this exemption didn’t apply because he made the OPRA request before he was convicted. The court summarily rejected this argument, saying that it would not second-guess the GRC’s conclusion that the privacy interests of the victim and the victim’s family required denial of the request.

The “Glomar” Response to OPRA Requests For Investigation Information

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An OPRA request to a law enforcement agency for records of its investigation of a particular person poses a knotty issue where, as is often the case, there has been no public disclosure of whether that individual is under investigation. In that situation, the agency would necessarily seek to protect the confidentiality of the investigation. But a response that the agency’s records are exempt (under, for example, OPRA’s investigatory or privacy exemptions) would reveal the existence of an investigation–a disclosure that itself would harm the affected person’s privacy interest.

FOIA case law solves this problem by permitting agencies to give the so-called Glomar response; this means that the agency tells the requestor that it neither confirms nor denies the existence of the records requested. The Justice Department explains that this response is necessary under FOIA to avoid revealing exempt information, such as whether someone is being investigated.

This concept is not limited to federal law. Recently, the New York Appellate Division held that the Glomar response is proper under New York’s public record law, and upheld the NYPD’s refusal to confirm or deny the existence of investigatory records concerning certain individuals. Matter of Abdur-Rashid.

No New Jersey court has ever addressed the validity of this type of response under OPRA. Nevertheless, the FOIA Glomar approach is a sensible way to avoid harming privacy and investigatory interests, which OPRA seeks to protect, and it ought to be followed in New Jersey.

Privacy Rights: The Real Importance of the Supreme Court’s New OPRA Case

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The Supreme Court’s recent decision to review Matter of Fireman’s Ass’n Obligation to Provide Relief Application has attracted attention for presenting the novel issue of whether OPRA permits public agencies to file declaratory judgment suits concerning access to records. But the case also involves review of whether the Appellate Division correctly ordered disclosure of an applicant’s financial relief assistance award. This ruling raises crucial, unsettled issues concerning the extent that New Jersey law protects individuals’ privacy interests–issues of far greater public importance than the litigation procedure question presented by this matter.

I’ve previously expressed my view that the issue of whether agencies may file OPRA declaratory judgment suits is not especially significant. In most cases, agencies should have no need to bring a declaratory judgment action under OPRA–they can simply deny the request, and then defend that decision if a requestor files a court or GRC complaint. I doubt that declaratory judgment OPRA complaints will be filed very often, even if the Supreme Court rules that such actions are permissible.

In contrast, because public bodies often face OPRA requests for records that involve an expectation of privacy, the Supreme Court’s consideration of the privacy question in the Fireman’s Ass’n case is extremely significant. OPRA custodians have little case law guidance on how to handle the difficult issue of protecting privacy interests. The Supreme Court established the basic guidelines governing OPRA’s privacy provision in its 2009 Burnett opinion, but there are few published court opinions since then that have applied these standards.

The records sought in Fireman’s  Ass’n would reveal the recipient of financial relief payments and the amount paid. The Appellate Division determined that such information is subject to the expectation of privacy, because it shows that the award recipient was in financial distress. Typically, private information like this about a person’s financial status would be kept confidential. However, applying Burnett’s balancing test, the Appellate Division concluded that the interest in public disclosure, based on the allegation that there may have been some impropriety in granting an award to the applicant in question, outweighed the privacy interest.

The Appellate Division’s holding only affects the specific records in question in the case, but of course any discussion by the Supreme Court has much broader precedential value. The Supreme Court’s clarification of how to resolve privacy concerns raised by OPRA requests is sure to have an impact on access to many types of records.

Will the Supreme Court agree with the Appellate Division’s analysis, or give greater weight to the privacy interests that are present here? The answer to this question will affect how courts and record custodians should evaluate all future privacy issues raised by OPRA requests, and consequently will have an enormous effect on privacy rights in New Jersey.