A Rare Court Opinion On OPRA’s Security Exemption

Leave a reply

In 2016, the Supreme Court, in Gilleran v. Bloomfield Tp., for the first time addressed OPRA’s exemption for security information which, if disclosed, would jeopardize security of a building or create a risk to a person’s safety. The Court held that the exemption applies to footage from a building’s surveillance camera. Since this Supreme Court opinion, there has been almost no case law dealing with this security exemption, except for a single, unpublished 2018 Appellate Division opinion that determined the exemption covers computer security information.

The Appellate Division recently issued another unpublished opinion concerning the security exemption. Zezza v. Evesham Tp. Bd. of Ed. Although this opinion is not precedential, and breaks no new legal ground, it’s still worth noting, in view of the lack of case law in this area of OPRA.

The court held that the Board incorrectly denied an OPRA request for 35 seconds of footage from surveillance cameras on the grounds of a school, because it had made no showing that release of the video would compromise security. The Board did not submit any certifications describing security concerns, and in addition, the trial judge concluded that disclosing such a small amount of video footage would not expose any “surveillance weaknesses.”

The Appellate Division correctly determined that under these circumstances, there’s no basis to apply the security exemption. It noted that in Gilleran, the Supreme Court expressly said that to rely on this exemption, “the governmental entity must establish that the security tool (here, the camera) produces information that, if disclosed, would create a risk to the security of the building or the persons therein because of the revealing nature of the product of that tool.”

Appellate Division: No OPRA Violation Where Custodian Was Temporarily Unable To Search For Records Due To Covid Shutdown

Leave a reply

In an unpublished opinion, the Appellate Division determined that a public body acted appropriately, and did not violate OPRA’s response deadline, where it told the requestor it would search for the requested records after the end of a Covid shutdown. C.E. v. Elizabeth Public School Dist. This is the first appellate opinion to deal with the effect of pandemic closures on the handling of an OPRA request.

The OPRA request was submitted to the School District in May 2020, when all District schools and offices were closed indefinitely due to Covid. As a result, the District advised the requestor, “we will respond to your request for records when circumstances allowing for the reopening of the District and access to records permit.” It explained that the search of the records sought could only be done on the premises. The District eventually provided the requested records in March 2021, shortly after being able to return to the office.

The appeal concerned the requestor’s claim for attorney fees, based on the catalyst theory–that its litigation, which it had filed in the Law Division in 2020, caused the release of records in 2021. The Appellate Division rejected this argument because the District had not refused to disclose any records; instead, its answer to the OPRA request was that it would produce responsive records when able to do so. The requestor’s litigation, said the court, did not cause the District to release the records.

The requestor attempted to avoid this conclusion by arguing that the District’s initial response should be deemed a denial of the request, because the District did not fulfill the request within OPRA’s 7-business day deadline. The court found this argument to be flawed, because the Legislature suspended this OPRA response deadline during the Covid emergency. Instead of requiring the custodian to respond within a specific time frame, the statute stated that a custodian must make a reasonable effort under the circumstances to respond. The Court concluded here that the District did make a reasonable effort, given the impact of the Covid-related closure on its ability to search for responsive records.

Supreme Court to Review Whether OPRA Requires Disclosure of Residents’ Email Addresses

Leave a reply

The Supreme Court recently granted review of a consequential OPRA issue: the applicability of OPRA’s privacy provision to residents’ personal email addresses. Since OPRA’s enactment, municipalities have been frustrated by the absence of precedential case law governing requests for residents’ email addresses. The Supreme Court will now remedy this situation, in Rise Against Hate v. Cherry Hill.

Specifically, the question in the case, according to the Court’s website, is:

“Are email addresses submitted by members of the public to a public agency to sign up for electronic newsletters and notices subject to disclosure under the Open Public Records Act?”

In this case, the Appellate Division held that OPRA’s privacy section prohibited disclosure of the email addresses. As I explained here, the Appellate Division determined that people have an expectation of privacy in their email addresses, and these privacy interests outweighed the requestor’s interest in disclosure, where residents provided their email information to the municipalities for receipt of “periodic, generic newsletters and notices.”

Although this case only involves email addresses that were submitted for receipt of newsletters and notices from municipalities, presumably the Supreme Court’s analysis will also provide guidance on how to handle an OPRA request for a personal email address that a public body has received, for any other reason.

A Reminder from the GRC: Officials’ Private Calendars are Exempt from Disclosure

Leave a reply

In 2005, the Appellate Division held that an official’s appointment calendar is exempt under OPRA. There’s been no change in the law since this ruling, but requestors still occasionally seek disclosure of this type of calendar.

The GRC recently upheld the denial of such a request, which asked for disclosure of the Outlook calendars of the State Registrar of Vital Statistics. Since is was undisputed that these contained only internal information, rather than public meeting schedules, the GRC held that they were exempt, based on the Appellate Division’s 2005 opinion and the GRC’s 2017 decision in McDonald v. Jersey City (rejecting request for Mayor Fulop’s calendar).

Supreme Court: Custodians Should Be Trained In Handling Common Law Records Requests

Leave a reply

In Gannett v. Neptune Tp., its recent opinion holding that common law record requestors have no right to attorney fees, the Supreme Court took the unusual step of recommending that custodians receive training in how to deal with common law requests. As I’ll explain, public entities that fail to provide this suggested training run the risk of paying requestors’ attorney fees and court costs.

Noting that common law record requests often present complex issues, the Court

recommend[ed] that municipal clerks and other records custodians
for public entities receive comprehensive training with respect to common law
right of access claims, and that they be directed to carefully review each
request and provide a response that comports with the law.

Although the Court’s recommendation is not a binding directive, its opinion suggests a potential adverse consequence if a custodian does not receive appropriate training. The opinion states that attorney fees are not automatically awarded in common law matters, to enable public entities “to formulate a good-faith legal position on the disputed information and to litigate that position, without the risk of an award of attorneys’ fees in the event that a court later rejects it.” But the Court then cautions that the sanctions for frivolous litigation positions–which include awarding attorney fees–still apply to common law record disputes. According to the Court, these sanctions may be imposed where a custodian denies a request for a record that the Court has previously deemed to be subject to disclosure under the common law.

In short, the Court has signaled that if a custodian has not been trained in the common law right of access to records, and incorrectly rejects a request for a record that case law has determined to be disclosable under the common law, the public entity will face the risk of monetary sanctions.

I offer training programs regarding the common law right to records, for both custodians and attorneys. Please contact me at lewscheindlin@gmail.com if you are interested.

Supreme Court Holds That There Is No Right To Attorney Fees In Common Law Records Requests

Leave a reply

A successful OPRA plaintiff is entitled to an award of attorney fees, but for the past 15 years, it has not been clear whether a litigant who obtains records only under the common law right to records may be awarded attorney fees. The Supreme Court has finally resolved this important issue, holding that successful common law requestors have no entitlement to attorney fees. Gannett Sat. Info. Network v. Tp. of Neptune.

Despite the absence of any legal basis for requiring public bodies to pay a common law requestor’s attorney fees, since 2008 the courts often ordered such awards, relying exclusively on a sentence in the Supreme Court opinion in Mason v. City of Hoboken, an OPRA case. The sentence seems to say attorney fees may be awarded in common law records cases. But as I stated in this 2021 analysis, Mason did not hold, and should not be understood to suggest, that attorney fee awards are permissible in common law records matters.

In Gannett, the Court agreed; it said that the Mason opinion’s “brief allusion” to common law attorney fees was not a ruling on the question of whether they are required. In directly deciding this issue, the Gannett Court unambiguously held that attorney fees may not be awarded to a successful common law requestor.

This ruling is hugely important. OPRA’s mandatory attorney fee award provision imposes substantial costs on public bodies: not only must they pay attorney fees to successful OPRA litigants, they also incur the expense of having to litigate the attorney fee portion of the OPRA case. These costs now do not apply to common law record requests.

Does A Prolific Records Requestor Actually Exist?

Leave a reply

Over the past several years, the African American Data and Research Institute (AADRI) has filed numerous OPRA requests and litigated many OPRA cases, including several Supreme Court and Appellate Division cases. In all of these matters, attorney Rotimi Owoh represented the AADRI. But a current GRC case, Rotimi Owoh, Esq. o/b/o ADARI v. Bayonne, raises the claim that the AADRI is not a real entity, and instead is actually the alter ego of Mr. Owoh.

This question must be answered to determine whether the AARDI is entitled to an attorney fee award as the prevailing party in the GRC litigation. The requestor prevailed here, as the GRC determined that Bayonne did not properly respond to the OPRA request. However, under fee-shifting statutes such as OPRA, it’s clear that an attorney who litigates on behalf of himself, instead of representing a separate client, may not receive an award of attorney fees. In the GRC case, Bayonne argues that it is not liable for attorney fees because attorney Owoh, who handled the GRC litigation, was the true requestor.

Specifically, Bayonne contends the AARDI is a “sham” entity. It alleges the organization is registered at Owoh’s home address, and Owoh’s family members are the Institute’s members. Owoh disputes Bayonne’s claim that AARDI does not exist. The GRC referred the matter to the OAL to engage in fact-finding and resolve whether AARDI is an entity that is separate from Mr. Owoh.

The AARDI is entitled to an attorney fee award if it is a genuine, separate organization. But if it’s not, then there’s the unfortunate result that many public bodies have paid unwarranted attorney fees for Mr. Owoh’s work in previous OPRA cases involving the AARDI.

Two Recent Appellate Division Opinions Consider Whether OPRA Requires Disclosure of Personal Email Addresses

Leave a reply

It’s not clear whether OPRA requires a public body to disclose a personal email address that it has in its possession. While there’s a good argument that OPRA’s privacy section protects individuals’ email addresses, as recognized by the GRC and some unpublished court opinions, there is no definitive, precedential ruling on this issue.

The Appellate Division recently addressed this question, but did so in two unpublished, non-precedential opinions that reached different conclusions due to the different circumstances presented in each. Although these opinions are fact-specific, they are instructive for how custodians should deal with a request for personal email addresses.

In Brooks v. Twp. of Tabernacle, the Appellate Division determined that the email addresses had to be released. The OPRA request sought the names and email addresses of those who had emailed with certain Township officials and employees. The court stated that OPRA’s privacy section does apply to a personal email address, because a person has a colorable claim that disclosure of this information would invade their objectively reasonable expectation of privacy. But although the claim is colorable, the court applied the required balancing test and concluded that the privacy interest of the individuals here was mimimal, and was outweighed by considerations favoring disclosure of the requested email addresses.

In reaching this conclusion, the court placed substantial emphasis on the fact that the government had the addresses due to the decision of these members of the public to engage in email exchanges with public officials and employees about public business. The court said such discussion is “an inherently public activity,” making it unreasonable for anyone to “believe they have a right to cloak their contacts relating to public business in secrecy.”

In contrast, in Rise Against Hate v. Cherry Hill, decided by the same panel of judges on the same day, the email addresses held by the government did not result from email exchanges about public business. Instead, residents had given the municipalities their email addresses for the purpose of receiving newsletters and notices from the municipalities. Applying the same legal analysis as it did in Brooks, the court this time concluded OPRA’s privacy protection required withholding the addresses from disclosure.

The key to the ruling in this case was that the residents provided their email information to the municipalities for receipt of “periodic, generic newsletters and notices,” rather than engaging in email dialogue with public officials about public business. This tipped the balance of interests in favor of privacy.

These opinions are not precedential for future OPRA requests for email addresses. However, it’s significant that the court saw OPRA requests for email addresses as presenting a colorable claim of invasion of privacy, confirming that custodians should assess such requests under the fact-specific balancing test.

An Important Reminder from the Appellate Division: OPRA Complaints must be Verified, and Supported by Affidavit Based On Personal Knowledge

Leave a reply

It’s well settled that an OPRA complaint must be filed as a summary action, which requires filing an order to show cause, with a verified complaint supported by an affidavit that states the facts based on personal knowledge. However, I’ve handled cases where the requestor’s attorney overlooks this basic requirement. The failure to follow the summary action procedures requires dismissal of the complaint.

The Appellate Division recently issued an unpublished opinion confirming this principle. It said that the summary action procedures “may not be bypassed by [OPRA] plaintiffs,” and non-compliance with these rules renders the complaint a “nullity.” African American Data and Research Inst. v. Hitchner.

In this case, the trial judge determined that the OPRA plaintiff’s failure to verify the complaint, and to submit a supporting affidavit, did not matter, and issued a ruling requiring disclosure of some of the requested documents. The Appellate Division reversed, and dismissed the complaint. The court emphasized that the failures to verify the complaint and submit an affidavit in an OPRA suit are “fatal procedural deficiencies.”

Appellate Division Discusses the Proper Way to Handle an OPRA Request Sent to the Wrong Agency

Leave a reply

In Owoh v. City of Camden, the Appellate Division recently dealt with what it characterized as a “case of mistaken identity”–the requestor asked the City of Camden for records of the County of Camden. The request sought various police department records from the City, but since 2013, the City has had no police department, and the County Police Department handles all policing in the City. The court held that the request in question could only be answered by the County, the public entity that maintains the records in question.

After reaching this unremarkable conclusion, the court dealt with an issue that is of interest to all record custodians–the obligations imposed by OPRA when a request is submitted to an agency that isn’t the custodian of the record. According to the Appellate Division, this situation is governed by OPRA’s requirement that the person in receipt of the request must either “forward the request to the custodian of the record or direct the requestor to the custodian of the record.”

The court rejected requestor’s argument that the City was required to respond to its misdirected request by obtaining the records from the County. As the court pointed out, OPRA does not require this. The City here followed the plain language of the statute, by directing the requestor to the proper custodian; it notified the requestor that the County was the custodian of the records sought, and gave a County phone number to contact with reference to the request.