Beware Of GRC’s Strict Application Of OPRA’s “Immediate Access” Provision

Leave a reply

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.

Review of Recent Court Opinions On Law Enforcement Records

Leave a reply

The past few months have seen the courts issue a number of opinions concerning OPRA and law enforcement records. In all of these cases, the courts have favored law enforcement interests in maintaining the confidentiality of records related to safety, security and the integrity of investigations.

The following are the most important recently-issued opinions.

–North Jersey Media v. Lyndhurst, in which the Appellate Division held that virtually every record connected with a criminal investigation is confidential, is the most significant law enforcement-related opinion issued under OPRA. The Supreme Court has been asked to review the ruling, but has not yet said whether it will take the case.

-In Gilleran v. Tp. of Bloomfield, the Appellate Division recognized the critical law enforcement interest in protecting the confidentiality of a building’s surveillance camera recordings. Trial courts have relied on the Gilleran opinion to reject efforts to disclose such recordings and other security-related information.

-In NJ 2d Amendment Soc. v. State Police, the Appellate Division upheld the validity of a regulation adopted by the Department of Law and Public Safety which exempts from disclosure under OPRA any information that may reveal the duty assignment of a law enforcement officer.

-Trial judges have applied OPRA’s security exemption to records of school security drills and also to information about the travel expenses incurred by the State Police unit that protects the Governor.

–

 

Summaries of GRC Decisions-September 29, 2015 Meeting

Leave a reply

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.

 

 

Trial Court Upholds Confidentiality Of Police Building Video Recordings

Leave a reply

A Bergen County judge recently upheld the denial of an OPRA request for building surveillance camera recordings, taken within the Weehawken police station, on the basis of the security exemption. Blaettler v. Twp. of Weehawken.

The requestor asked for the videos from the cameras covering the “report area next to the police desk.” The judge agreed with Weehawken’s position that the videos were confidential under OPRA’s exemptions for security and safety. He relied on certifications from members of the police department which demonstrated the safety and security risks entailed in disclosing this area of the police station, including exposing building security shortfalls and revealing sensitive information on a computer terminal.

The judge also denied plaintiff’s common law claim for access to the videos, holding that the safety and security risks outweighed plaintiff’s disclosure interest.

It appears that the Township’s successful defense in this case may be attributable to the Appellate Division’s May 2015 opinion in Gilleran v. Bloomfield Twp. As I pointed out in this post on Gilleran, the Appellate Division recognized the security concerns inherent in releasing footage from video surveillance cameras, and explained what type of evidence is needed to support the withholding of such records. Consistent with what the court said in Gilleran, Weehawken provided appropriate, specific evidence showing the risks involved in disclosure.

 

Appellate Division: OPRA Does Not Require Custodian To Give Detailed Description Of Withheld Records

Leave a reply

On September 30th the Appellate Division issued an unpublished opinion, Academy Express v. Rutgers, which deals with several critical OPRA issues. Most importantly, the court ruled that a custodian is not obligated to give a detailed description of the records that are withheld in the response to the OPRA request.

Requestors often argue that such a description must be provided by the agency to enable them to assess the validity of the stated basis for withholding the record, but the court rejected this claim.

In addition, the court stated that an OPRA complaint cannot be brought as part of a complaint asserting non-OPRA claims, and it reaffirmed that a request for all correspondence concerning a topic is invalid.

Academy Express filed a multi-count complaint against Rutgers concerning Rutgers’ failure to award it a contract to operate the University’s bus system. The complaint also included an OPRA claim regarding Rutgers’ response to Academy’s requests for documents related to the contract award. The trial judge rejected the various claims pertaining to the contract, but determined that Rutgers had violated OPRA and was liable for attorney fees.

One violation, said the trial judge, was that  while Rutgers correctly denied access to a few pages of another bidder’s bid proposal under the exemption for proprietary, commercial or financial material, it did not sufficiently describe the withheld documents, leaving Academy “unable to ascertain the propriety of the assertion of privilege.”

The Appellate Division disagreed. It found that Rutgers’ response was proper, where it simply identified the applicable exemption and the pages that were redacted. And crucially, the Appellate Division said there is no authority supporting the claim that “notwithstanding the proper withholding of a document, a perceived shortcoming in the description of what was properly withheld would be sufficient to find a violation of OPRA.”

This is the first appellate court opinion to deal with the argument frequently made by requestors that a custodian’s response to a request must provide a detailed description of any document that is withheld. The court recognized that the law does not impose such a requirement. The statute only requires that the custodian state the basis for denying a request, as Rutgers did in this case.

The Appellate Division also held that Academy’s request for all correspondence concerning the RFP and the contract award was an invalid request. This is yet another example of what I’ve noted before: requestors continue to make this type of request, even though courts consistently say such a request is invalid.

Finally, attorneys should take note of the court’s ruling that an OPRA case cannot be brought as part of a complaint that asserts other claims. An OPRA complaint must be filed as a summary action and therefore cannot be litigated together with non-OPRA claims.

 

Case Law Lacking On Higher Education OPRA Issues

Leave a reply

OPRA has several exemptions that apply exclusively to higher education institutions, involving records concerning academic research, examinations, charitable donations and individual admission applications, as well as information regarding student records. Surprisingly, there is no case law dealing with any of these exemptions.

The GRC has occasionally issued decisions on the higher education exemptions. See, e.g., White v. William Paterson U. (2008-216) (audio tape of a student disciplinary hearing was properly redacted); Rosenbaum v. Rutgers (2002-91) (survey responses were exempt as academic research). But there are no court opinions providing precedential guidance on these sections of OPRA.

This occurred to me as I read the recent report on Rutgers football coach Kyle Flood’s attempt to get a professor to change the grade of a player on the team. The report contains Flood’s initial email to the professor, which discusses the request for a grade change and encloses a letter from the student concerning his behavior during the semester.

Flood sent the email through personal email accounts “to ensure there will be no public vetting of the correspondence.” The report explains that he did this to avoid an OPRA request. Apparently, Flood was not aware that an email by a public employee discussing a work matter is subject to OPRA, regardless of whether it was sent through a personal account or the public employer’s account.

The more important question for higher education institutions is whether, under OPRA, Flood’s email to the professor should be considered confidential under OPRA’s exemption for “information concerning student records…to the extent disclosure would reveal the identity of the student.” It is not clear whether the email constitutes information concerning student records, although it would seem that a discussion of a student’s performance in a course should meet this definition.

It’s also possible that the student’s identity would be revealed by disclosure of this type of email. Although this is a moot point in this matter, because the student in question has been identified in media reports, a college confronted with a similar OPRA request would have to make a delicate judgment as to whether disclosure might reveal the subject student’s identity.

The problem, as noted above, is that there is no case law interpreting the scope of OPRA’s exemption for student records, as well as the other exemptions that apply only to higher education institutions.

 

GRC’s Acceptance Of Anonymous Complaints Is At Odds With New Appellate Division Opinion

Leave a reply

The Appellate Division recently held, in A.A. v. Gramiccioni, that OPRA plaintiffs may not file anonymous court complaints. Although this opinion only dealt with OPRA cases filed in the Superior Court, the Appellate Division’s reasoning suggests that the GRC’s longstanding practice of accepting anonymous complaints is legally deficient.

The GRC’s website shows that it has handled about 10 complaints over the past several years filed by “Anonymous.” There’s no indication that any party in these cases raised the issue of whether it is appropriate to allow a complainant to proceed anonymously.

In A.A. the Appellate Division upheld dismissal of the anonymous complaint on the basis that the plaintiff did not file an order to show cause and verified complaint, as required by court rules for OPRA actions. An anonymous plaintiff, of course, cannot verify the complaint, because a verification requires an affidavit sworn to by the plaintiff.

The same problem exists in GRC cases. The GRC mandates that all complainants verify their complaints. Section 6 of the GRC’s required complaint, entitled “Verification of Complaint,” requires the complainant to affirm various statements, including that the information in the complaint is “true to the best of my knowledge and belief,” and then provide his or her signature.  But as determined by the court in A.A., an anonymous requestor cannot provide such verification.

The court also noted other reasons why litigants must reveal their identities, such as for purposes of ensuring that the claim in question has not already been litigated by the plaintiff, and for checking whether an attorney has a conflict of interest. These issues can come up in a GRC case as well.

In fact, OPRA expressly prohibits requestors from filing the same denial of access complaint in both the GRC and the court. If a GRC complainant is completely anonymous, there’s no way to know whether he or she is simultaneously pursuing the same claim in the Superior Court.

These issues show that the GRC needs to review its procedures and promulgate new rules concerning complainants who seek to be anonymous.

 

 

OPRA’s Exemption For Officials’ Calendars

Leave a reply

This recent Jersey Journal article discusses Jersey City’s denial of the Journal’s request for copies of Mayor Fulop’s private meetings calendar. Although the article suggests there is no legal justification for this denial, New Jersey case law directly states that the appointment calendars of public officials are exempt from disclosure under OPRA.

In a published 2005 opinion, Gannett New Jersey Partners v. County of Middlesex, the Appellate Division upheld the County’s denial of an OPRA request for County Counsel’s appointment book. The court stated that a Supreme Court opinion barring the public release of telephone numbers called by an official applies as well to the meeting information contained in an official’s appointment book.

As a result, New Jersey law is clear: OPRA does not permit the disclosure of public officials’ private calendars.

OPRA And The Privacy Of Internal Affairs Files

Leave a reply

This recent NJ.com article reports on a new OPRA suit filed against the State Police, in which the plaintiff seeks records of that agency’s internal affairs investigation into whether an unidentified trooper, to quote the article, “offered to toss an arrest warrant in exchange for sex.” This suit highlights a longstanding problem: the incorrect claim often made by requestors that OPRA permits them to obtain disclosure of a public employee’s personnel records.

The law is clear that OPRA’s personnel records exemption prohibits the disclosure of the records of an investigation by a public agency, such as an internal affairs inquiry, into whether one of its employees committed misconduct. For this reason, under both New Jersey law and the federal FOIA, the name of an employee who has been disciplined as a result of such investigation is confidential.

The Appellate Division recently confirmed that police internal affairs files are personnel records. In a case dealing with a discovery demand for Rutgers Police Department internal affairs records, Padilla v. Rutgers, the court said that these are personnel files, and emphasized that settled law recognizes the strong public interest in the confidentiality of these records.

As I have previously discussed, see this post, the Appellate Division is currently considering an appeal that presents the issue of whether OPRA’s personnel exemption applies to police internal affairs records. The court needs to resolve this issue and make clear that OPRA does not allow requestors to invade the privacy interest that New Jersey public employees have in their personnel records.

Appellate Division: OPRA Plaintiffs May Not File Anonymous Court Complaints

Leave a reply

In a case of first impression, the Appellate Division held today that neither OPRA nor any other law authorizes an OPRA requestor to file an anonymous court complaint. A.A. v. Gramiccioni.

“A.A.” submitted an anonymous OPRA request, as permitted by the statute, to the Monmouth County Prosecutor’s Office. After the request was denied, he filed a complaint in Superior Court, continuing to call himself A.A. and claiming the right to proceed in court without revealing his identity. (I refer to A.A. as “he” for ease of writing; I don’t know if A.A. is male or female).

The appellate court said that the controlling principle is that a litigant in a court proceeding must reveal his or her identity, in the absence of statutory or court rule authorization, or a compelling reason. No  court rule permits anonymous OPRA complaints, and the court concluded that OPRA also does not grant such authorization. The court noted that unlike the statutes that expressly permit litigants to be anonymous, such as in actions involving child sexual abuse victims, OPRA does not provide that right to requestors.

The Appellate Division observed that in the absence of statutory authorization, a litigant must show that there is good cause for shielding his or her identity. The court said that the plaintiff here had shown no reason, let alone good cause, for exempting him from the basic principle that litigants may not be anonymous.

In addition to establishing the precedent that OPRA does not authorize anonymous court filings, the opinion contains another important ruling. The trial judge had dismissed plaintiff’s action on the basis that plaintiff did not file an order to show cause and verified complaint. An anonymous plaintiff, of course, cannot verify the complaint, because a verification requires an affidavit sworn to by the plaintiff.

The Appellate Division agreed that this defect requires dismissal of an OPRA complaint. The court reaffirmed the principle that an OPRA complaint must be filed in accordance with the summary action requirements of the court rules.

This is the first time that the Appellate Division has stated specifically that the absence of a verification mandates dismissal of an OPRA complaint. This ruling may ultimately prove to be highly significant, by putting requestors on notice that OPRA court actions will be dismissed if they do not include a properly verified complaint.