As discussed here, compliance with OPRA’s ambiguous requirement that “immediate access” be granted to certain records is difficult. The GRC takes an extremely strict approach to applying this statutory section. Unfortunately, in a recent decision, the GRC also incorrectly interpreted this portion of the statute, in holding that a custodian had violated OPRA even though access to the requested records had not been denied. See Scheeler v. Dept. of Ed.

In this case, the requestor made a multi-part request. One part sought legal bills, which are subject to the immediate access provision. After a brief extension period, the custodian responded to the entire request, providing some documents and advising the requestor that the requested legal bills did not exist.

The GRC ruled that the custodian had violated OPRA with regard to the legal bill portion of the request. It said that the custodian was obligated to tell the requestor immediately that there were no such bills, rather than wait until the final day of the extension period.

In my view, the GRC’s conclusion is inconsistent with the statute, which by its plain language is directed at ensuring that citizens can obtain immediate “access” to certain types of basic government documents, such as bills and contracts. There can be no violation of this right to “access” where, as here, the requested record does not exist.

In any event, custodians must keep in mind that the GRC will find them to have violated OPRA if they fail to advise a requestor right away that requested “immediate access” records do not exist.

This blog regularly summarizes the final decisions issued by the GRC at its meetings. The following are the final decisions issued at the GRC’s most recent meeting. For summaries of decisions from prior meetings, see here.

-Boyle v. City of Hoboken: A request asking the custodian to identify police officers from their ID numbers in various reports was an invalid research request.

-Scheeler v. Dept. of Ed: The custodian erred in failing to advise requestor immediately that there were no responsive legal bills. The GRC also held that the requestor improperly challenged another part of the response by filing a complaint before the custodian’s extension period had expired.

-Huegel v. Newark-The custodian’s untimely response was not a knowing and willful violation.

-Caggiano v. Tp. of Green: The custodian properly denied the request because it did not comply with a Superior Court order that required this requestor to submit all his OPRA requests on the public body’s official form.

-Scheeler v. MVC: The custodian’s incomplete response was not a knowing and willful violation.

-Green v. Tp. of Vernon: The custodian did not violate the requestor’s right to make an anonymous request, because the requestor filed the request in person at the town office and later appeared there to pick up the requested records, thereby waiving any anonymity.

-Clancy v. Civil Service Commission: The requested record was confidential pursuant to a federal court order and therefore access was properly denied.

-Diaz-Young v. NJDOC: An internal prison investigatory report is exempt under the safety and security exemption.

-Kovacs v. Union Cty: The custodian’s untimely response was not a knowing and willful violation.

-Verry v. West Milford Bd. of Ed: The custodian’s untimely response was not a knowing and willful violation. In addition, the requestor was not entitled to attorney fees, because his filing of the GRC complaint was not the catalyst for the release of the requested records.

-Elkhill v. Tp. of Edison: The custodian’s untimely response was not a knowing and willful violation.

-Thompson v. Tp. of Mansfield: The custodian’s untimely response was not a knowing and willful violation. In addition, the requestor was not entitled to attorney fees, because she did not obtain the release of any records; the custodian certified that no responsive records could be found.

The GRC recently determined, for the first time, that autopsy reports are not covered by OPRA’s exemption for criminal investigatory records. Schultz v. State Police (2014-390).

In Schultz, the GRC noted that its prior decisions held that autopsy reports are exempt criminal investigatory records. The GRC reversed its position because, it said, it was not previously aware of N.J.S.A. 52:17B-88, which requires that the findings and conclusions of an autopsy be filed in the offices of the State Medical Examiner, the county medical examiner and the county prosecutor. According to the GRC, this statutory provision means that autopsy reports do not meet OPRA’s definition of a criminal investigatory record, which applies only to records not required by law to be made, maintained or kept on file.

The GRC emphasized that it was not holding that autopsy reports must be disclosed in their entirety, as other exemptions may apply to information contained within a specific report. In addition, photos and videos from an autopsy continue to be exempt, as stated in OPRA, N.J.S.A. 47:1A-1.1

The Schultz case involved a closed criminal investigation. It doesn’t offer specific guidance on how to deal with a request for an autopsy report while the investigation is ongoing.

It’s worth noting that there is some ambiguity in exactly what N.J.S.A. 52:17B-88 means with regard to public access to autopsy reports. In addition to the language the GRC relied on, this statute also says, in an amendment added in 1989, that a copy of the report must be released to the closest surviving relative of the decedent within 90 days of receipt of a request. The legislative history of the amendment states that this provision was needed because nothing in the law at the time enabled the decedent’s family to obtain the report.

This statement suggests that the Legislature believed that the Right to Know Law–which applied at that time– did not make autopsy reports publicly accessible, despite the statutory requirement that the report be filed with certain offices. Because the legal standards of the Right to Know Law govern the interpretation of OPRA’s criminal investigatory exemption (see this Appellate Division opinion), it is not clear that N.J.S.A. 52:17B-88 is intended to mandate the disclosure of autopsy reports to anyone filing a public records request. The statute could be understood as requiring release only to the decedent’s close relatives, and applying the criminal investigatory record exemption to any other requestor.

This argument apparently was not presented to the GRC. It will be interesting to see if the GRC or a court is asked to address this issue in a future case.

One of OPRA’s more confusing requirements is that a custodian “ordinarily shall” grant “immediate access” to certain records, such as bills, contracts and employee salary information. The statute doesn’t define the meaning of the vague terms “ordinarily” and “immediate,” and the courts have not interpreted this language. As a result, it’s not clear exactly how quickly a custodian must respond to a request covered by the immediate access provision.

The GRC also has not clearly defined the immediate access requirement. In the FAQ section on its website, the GRC says the phrase means “at once, without delay,” unless  there is a legitimate reason for delay, such as that the records are in use, in storage, or involve conversion to another medium.

Unfortunately, the “at once” standard is ambiguous and unrealistic. For example, it implies that the custodian must respond at the very the moment he sees a request for a bill. But as a practical matter this is impossible; the custodian needs time to figure out where the bill is located, obtain a copy, review it for potential confidential material and then prepare the document for sending to the requestor. And of course it is likely that at the same time, the custodian would be working on other matters with deadlines. Under these typical circumstances, it may take a diligent custodian a day or two to send out the requested bill. Would the GRC say this custodian violated OPRA?

The GRC’s cases do not answer this question. However, the GRC’s decisions show it takes a hard line on the immediate access provision. A recent decision illustrates this. In Giambri v. Sterling H.S. Dist. (#2014-394), the request sought contracts  and salary information of 6 employees, as well as many other records. The custodian asked for an extension of time to respond to the entire request on the 5th business day after receipt of the request. The GRC stated that the custodian violated OPRA by failing to respond immediately to the contract and salary portions of the request. It noted that it had previously determined that responding on the 4th business day is a violation.

The record before the GRC showed that during the same time frame the custodian was dealing with numerous other OPRA requests submitted by Giambri. Although having to deal with the other requests presumably affected the custodian’s ability to respond quickly to the request in issue, the GRC did not mention this factor in holding that the custodian failed to comply with the immediate access requirement.

As noted above, no court has spoken on the immediate access requirement. Custodians should be aware of the GRC’s strict approach when a request for an “immediate access” record is received.

Unlike other state agencies, the GRC does not require complaints to be brought to it within a specified time frame. A requestor must file suit with a court within 45 days of the custodian’s decision, but there is no deadline at all for filing a complaint with the GRC.

Why is there no deadline? In a recent interim decision, Paff v. Harrison Twp. Fire Dist., the GRC explained that it does not have the legal authority to impose one. It stated that because OPRA does not contain a statute of limitations for filing complaints with the GRC, the agency lacks the power to establish such a requirement.

In my opinion, the GRC’s reasoning is incorrect. Administrative agencies have the inherent power to adopt procedural rules to enable them to carry out their statutory responsibilities. This means that an agency may set a reasonable deadline for the filing of complaints, where the Legislature has not mandated a specific deadline. For example, the Civil Service Act establishes a statute of limitations only for appeals to the Civil Service Commission of major disciplinary actions. The Commission’s rules set deadlines for filing administrative appeals regarding the many other types of disputes heard by this agency.

Similarly, the GRC could require that requestors file complaints within a reasonable time frame after receiving the custodian’s decision. Adoption of such a deadline would be consistent with the Supreme Court’s statement that OPRA requires the swift resolution of public record disputes.

In New Jersey, as well as in most states across the country, it is not clear whether public officials’ text messages are subject to freedom of information laws. Recently, the GRC issued one of the few decisions in the nation on this significant issue, and the first rendered in New Jersey. The GRC stated that text messages are government records under OPRA.

In Verry v. Franklin Fire Dist. 1 (#2014-387), the requestor asked for certain text messages of various officials and employees from their government-issued cell phones. The custodian denied the request on the ground that there were no responsive records; the individuals either no longer had the cell phone from the period covered by the request, or their phones did not have the ability to save texts.

Although the GRC ultimately affirmed the denial because the agency did not have the requested records, it nevertheless decided to “provide a definitive holding” on the issue of whether text messages are covered by OPRA. It determined that texts fall under the statute’s definition of a “government record,” as they are information that is stored or maintained electronically. The GRC said that texts are “fundamentally similar” to emails, because they are electronic communications.

The GRC’s brief analysis, while straightforward, does not fully deal with the questions that come up with regard to text messages under OPRA. For example, why doesn’t the case law holding that public employee telephone records are confidential (see this post) apply to cell phone text messages?

The impact of the GRC’s ruling is not clear. The GRC acknowledged that its decision does not require text messages to be retained by public employees. As a practical matter, as demonstrated by the Verry case, text messages usually won’t be saved, so in most cases there will be no records to provide.

However, the GRC’s decision is important because it suggests that future requests for text messages should not simply be denied on the ground that they do not involve a government record. Instead, under this decision, custodians will have to conduct a search to see if any text messages exist.

This blog summarizes the final decisions rendered each month by the GRC. The summaries below are of the cases decided at the GRC’s most recent meeting, held at the end of July (see here for summaries of the decisions issued at previous meetings).

-Carroll v. Trenton School Dist.: Custodian’s failure to respond properly to the request was not a knowing and willful violation.

-Dunleavy v. Jefferson Twp. Bd. of Ed.: (1) Custodian’s untimely response was not a knowing and willful violation; (2) One part of the OPRA request, asking whether a particular individual was employed, was an invalid information request.

-Barry v. NJ Transit: Custodian’s untimely response was not a knowing and willful violation.

-Moss v. Newark Zoning Bd.: Custodian lawfully denied the request because the requested records did not exist.

-Caggiano v. Governor’s Office: Custodian properly denied a request for all emails sent to the Governor’s Office by the requestor.

-Demitroff v. Buena Vista Fire Dist. No. 1: Custodian properly denied the request because the document requested was that of a private firm and was not in the agency’s possession.

-Alexander v. NJDOC: Custodian’s failure to provide the requested full name of an employee was not a knowing and willful violation.

-Verry v. Franklin Fire Dist. No. 1: (1) A resolution for no-bid professional services is not subject to OPRA’s “immediate access” provision; (2) Parts of the request were invalid because they did not specify a time frame for the correspondence sought; (3) Requestor was not entitled to attorney fees under the catalyst approach, even though records were released to him after the filing of the GRC complaint, because he filed the complaint without giving the custodian time to respond to his demand for additional records.

-Kimpton v. NJDOC: Custodian properly denied the request under the security exemption.

-Musgrave v. NJ State Police: There was no unlawful denial, as the request was properly denied under the law existing at the time of the request, and the records were subsequently released.

-Muata v. NJDOC: Denial of the request was upheld because no responsive records existed.

-Garcia v. NJDOC: Custodian properly denied the request as an invalid research request.

-Verry v. Franklin Fire Dist. No. 1 (#2014-387): The request for text messages was properly denied because no responsive records existed.

-Schultz v. NJ State Police: (1) a portion of the request, seeking all documents related to a certain investigation ,was properly denied as overbroad; (2) Autopsy reports are not criminal investigatory records and therefore must be disclosed; (3) Other reports and records were properly withheld as criminal investigatory records.

-Giambri v. Sterling H.S. Dist. (#2014-394): Custodian’s failure to provide immediate access to certain contracts and salary information was not a knowing and willful violation.

-Giambri v. Sterling H.S. Dist. (#2014-397): The request was properly denied as overly broad and requiring research.

-Gartner v. Middlesex Boro: Custodian’s belated disclosure of executive session minutes was not a knowing and willful violation.

-Scheeler v. NJDOE (#2015-16,17): Custodian’s insufficient response to the request was not a knowing and willful violation.

-Scheeler v. NJDOE (#2015-19): Custodian properly requested an extension of time to respond to the request.

In a case of first impression in New Jersey, the GRC recently determined that OPRA does not require disclosure of information on a public employee’s personal cell phone bills, even where the personal phone is sometimes used for public business. See Verry v. Boro of South Bound Brook.

The requestor in this matter believed that the Borough Clerk used his personal cell phone to conduct public business and also to make private calls while at work. His OPRA request sought the destination location of calls made and received, on various dates, on that phone.

The GRC referred the  case to an ALJ, who ruled that the use of a private cell phone to make personal calls at work does not trigger OPRA, and that the privacy interest in the cell phone records outweighed the requestor’s interest in obtaining records of call destination location. The GRC adopted the ALJ’s decision.

The ALJ noted that the courts have determined that public employee telephone records are generally confidential and protected by privacy expectations. He performed the balancing test required by the Supreme Court in OPRA privacy cases, and concluded that the requestor had not shown a need for the call location information that overcame the clear privacy interest in one’s personal cell phone bills.

The requestor primarily relied on the Appellate Division’s opinion in an OPRA case, Livecchia v. Boro of Mount Arlington, where the court required disclosure of destination location data from government employees’ public cell phones, based on a claim that these employees were using the phones for personal calls. The ALJ said that Livecchia did not apply because there the phone charges were paid by the public agency; in the present case, the public did not pay for usage of the phone.

The most important aspect of this case is that the GRC rejected the requestor’s argument that the ALJ should have held a plenary hearing to determine how much the cell phone was used for government matters. I’m sure that many public employees occasionally use their personal cell phones for a work-related call. This should not subject them to the threat of an OPRA suit involving discovery and a hearing concerning their personal cell phone records.

It should be kept in mind that this decision deals only with personal cell phone bills and does not involve an important question that no New Jersey court has yet addressed: whether OPRA covers text messages about government business on personal cell phones.

This blog summarizes the final decisions rendered each month by the GRC. The summaries below are of the cases decided at the GRC’s most recent meeting, held at the end of June (see here for summaries of the decisions issued at the GRC’s previous meeting in May 2015).

-Carter v. Franklin Fire Dist. 1: GRC adopted the ALJ’s decision that the custodian did not knowingly and willfully violate OPRA, and therefore should not be penalized, but reversed the ALJ’s award of attorney fees to the requestor, because the requestor had not prevailed on the penalty claim.

-Verry v. Boro of South Bound Brook (#2011-280): GRC held that the custodian’s personal cell phone bills are not government records, and the possibility that the cell phone might have been used on occasion for government business did not outweigh the privacy interest in the bills.

-Verry v. Boro of South Bound Brook (#2013-311): GRC awarded requestor attorney fees of $3720, for 12.4 hours at $300).

-Camarata v. Essex Prosecutor: GRC held that records of an internal affairs investigation are exempt.

-Barry v. NJ Transit (#2014-264): GRC held that the requested record was exempt as a criminal investigatory record.

-Barry v. NJ Transit (#2014-309): GRC held that the custodian did not commit a knowing and willful violation of OPRA.

-Sedges v. Morris Prosecutor: GRC held that the custodian erred by failing to give the requestor a specific reason for denying the request, but dismissed the complaint because no responsive records existed.

-Saccento v. Morris Prosecutor: GRC dismissed the complaint because records were released to the requestor.

-Scheeler v. Woodbine Bd. of Ed (#2014-17): GRC held the custodian erred by not giving immediate access to certain contracts, bills, expenditures and salary information, and failing to provide salary information for a few employees. It determined that the violations were not knowing and willful.

-Scheeler v. Woodbine Bd. of Ed (#2014-59): GRC held that the custodian performed an insufficient search, but determined there was no knowing and willful violation.

-Scheeler v. Dept. of Ed: GRC held that a request for identity of the person who answered certain OPRA requests was an invalid information request.

-Moore v. State Police: GRC held that a request for “information” about a murder is invalid.

-Abdur-Raheem v. Div of Criminal Justice: GRC held that request for an entire case file is an invalid request.

-Sanders v. Dept. of Corrections: GRC held that a request for all records regarding the requestor is invalid.

-Gould v. Twp of Fairfield: GRC held that the request was invalid as overly broad.

-Paladino v. Dept. of Corrections: GRC held that the custodian properly denied the request because the requestor did not have sufficient funds in his inmate account to pay copying fees.

-Janson v. Burlington City: GRC declined to penalize custodian, despite the failure to respond timely to the request, because records were eventually provided and there was no knowing and willful violation.

-Coulson v. Kearny Fire Dept.: GRC declined to penalize custodian, despite the failure to respond properly to the request, because records were eventually provided and there was no knowing and willful violation.

-Bernisky v. State Police: GRC held that the records were exempt criminal investigatory records.

-Hall v. Upper Saddle River: GRC declined to penalize custodian, despite the failure to respond  timely to the request, because records were eventually provided and there was no knowing and willful violation.

-Marck v. Div. of Consumer Affairs: GRC held that a licensing application  submitted to Board of Professional Engineers is exempt under a Dept. of Law & Public Safety regulation.

-Palkowitz v. Hasbrouck Heights (#2014-302): GRC declined to penalize custodian, despite finding that the special service charge was incorrect, because there was no knowing and willful violation. For a discussion of the special service charge calculation issue, see this previous post.

-Palkowitz v. Hasbrouck Heights (#2014-346): GRC held that a request for all footage from all police department cameras was invalid overbroad request.

-Dalal v. Camden Prosecutor: GRC dismissed complaint because the public body had no records responsive to the request.

-Wares v. Passaic Prosecutor: GRC held that complaints from the public about law enforcement officers’ actions are exempt personnel records, and internal affairs records are exempt under Attorney General guidelines.

-Eden v. Little Egg Harbor: GRC held that a request to create a list showing the properties at certain assessed values, and including other information about the properties, was an invalid research request.

-Anonymous v. Ocean City Historic Preservation Comm: GRC held that a draft map is exempt as advisory, consultative and deliberative material.

The GRC has been criticized for the amount of time it takes to rule on complaints, but it’s worth noting that the agency now issues many more contested case decisions at each meeting than it did during its first several years of existence.

The GRC recently reported that it receives about 300 complaints per month, totaling approximately 4000 complaints since it was created. Many of these complaints are eventually withdrawn, settled or dismissed as clearly without merit. The remaining cases are contested and result in the GRC’s issuance of often lengthy opinions containing comprehensive analysis of the parties’ arguments regarding the various records and issues involved in the case.

I looked at the opinions issued at each meeting in this category of contested cases and found that the number of these decisions has substantially increased. In its first decade (2002 through 2011), the GRC issued around 15-20 of such decisions at each monthly meeting. For example, in 2008 it averaged 19 substantive decisions per meeting and in 2010 the average was 22.

But beginning in 2012, this number increased to over 30 per meeting. Over the most recent 12-month period, June 2014-June 2015, the GRC has issued an average of 36 substantive case decisions per meeting.

This near doubling of the number of substantive decisions issued each month suggests that the GRC is operating much more efficiently than previously.