Summary of Latest GRC Decisions

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This blog will summarize the final decisions rendered each month by the GRC. The summaries below are of the cases decided at the GRC’s recent May 2015 meeting. Note that at each meeting the GRC also issues a number of interim decisions, which will not be included in a summary until they become final. Occasionally, interim decisions will discussed in separate posts, where they deal with an interesting issue (such as here).

Final GRC decisions from May 2015 meeting:

–Carter v. Franklin Fire Dist. Request for all purchase orders, vouchers and warrants held to be an invalid blanket request.

–Scheeler v. Salem Special Services School Dist. Due process petitions are exempt from disclosure as student records. Also, custodian erred in not disclosing redacted “Rice notices.”

–Sorce v. Stafford Twp. Custodian erred in not providing immediate access to requested invoices. Also held that the invoices, which were eventually provided to the requestor, were over-redacted.

-Martinez v. Edison Bd. of Ed. Request for emails held invalid because sender and recipient were not identified. Also, the requested student records were exempt from disclosure.

–Mitchell v. DMAVA Bid proposal held exempt from disclosure prior to award of contract, in accordance with NJ DMAVA regulation.

–Lare v. Lower Twp. Denial of request upheld because no responsive records existed.

–Baker v. Union County Prosecutor A 3d-party’s presentence report held exempt from disclosure.

–Kovacs v. Woodbridge Police Dept. Request for all police reports containing a certain address held to be invalid for not identifying specific record.

–Wares v. West Milford Twp. Complaints filed about police officers and police internal affairs complaints are exempt from disclosure.

–Hayes v. NJ Dept. of Corrections Investigative notes and classification file concerning incident involving an inmate held confidential under exemption for safety and security.

–Williams v. Passaic County Prosecutor Denial of request upheld because responsive record did not exist.

–Graumann v. Newfield Police Dept. The custodian erred by not responding timely and in writing to the request, but the GRC determined that there was no denial of access because the custodian eventually did provide the requested records. Also, no penalty was imposed on the custodian because the GRC found she did not intentionally violate OPRA.

–Garrett v. Dept. of Banking and Ins. Complaint file held exempt from disclosure, in accordance with NJ DOBI regulation.

The next GRC meeting is scheduled for June 30th.

The Continuing Problem of How to Calculate a Special Service Charge

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When answering an OPRA request requires agency employees to expend a substantial amount of time and effort, the agency may impose a special service charge. Properly calculating the amount of the charge is critical, both to withstand challenge by the requestor and to ensure that the public body recoups its costs, which may run into many thousands of dollars for extensive requests.

This recent decision by the GRC (Palkowitz v. Hasbrouck Heights) is a good example of the issues faced by a public body in calculating a special service charge. Although the case involves a relatively low special service charge of $210.92, it shows problems that may come up when calculating much larger charges as well.

In this case, the requestor sought a variety of information about a number of different Borough expenses over an 8-month period.The special service charge was based on 4.5 hours, consisting of 2.5 spent by a clerical employee and the assistant to the records custodian in generating the requested reports (billed at hourly pay rates of approximately $21 and $29, respectively), and 2 spent by the Borough administrator in reviewing the records for redaction (billed at $72 per hour).

The Borough stated that six employees had to spend a total of 14.5 hours to accommodate this request. However, it calculated the special service charge based upon only the 4.5 hours spent by the above three employees, which it said was the amount of time beyond that needed for the ordinary retrieval and copying of records.

The GRC agreed that a special service charge was warranted. However, it ruled that the charge was too high, because a lower-paid worker, rather than the Borough’s administrator, could have performed the task of redacting personal information, such as telephone and social security numbers. For this reason, the GRC reduced the fee to $138.74.

This case illustrates two issues with regard to calculating a special service charge. First, custodians should keep in mind that the charge should be based on the hourly rate of the lowest-paid employee who is qualified to perform the work needed to fulfill the request. In some situations, as shown by what occurred in Palkowitz, it may not be clear who is the lowest-paid “qualified” employee.

The answer to this question will depend on the facts of each situation and the type of records involved. The records custodian or a clerical worker may not necessarily be the proper lowest-paid employee for calculation purposes. For example, in a case involving a request for attorneys’ communications, the Appellate Division determined that it was appropriate for supervisory or legal staff to review the records for privileged material, thus warranting the use of the hourly rate of an attorney in calculating the special service charge.

The second issue raised by the GRC decision is that the Borough did not base the special service charge on the total number of hours spent by all employees in fulfilling the request. The statute indicates that the total amount of time expended by the public body is to be used in calculating the charge, and this is confirmed by both case law and the FAQ section of the GRC’s website.

In this matter, although its employees spent a total of 14.5 hours on the request,  the Borough based the charge on 4.5 hours. The reason given by the Borough for using only 4.5 hours–that this was the amount of time spent beyond what was ordinarily needed to retrieve and copy all the records–is not what the law requires in calculating a special service charge.

I’m not suggesting that the Borough was obligated to charge the requestor for all the hours expended by employees on the request. Public bodies have the discretion to set the special service charge at less than the maximum allowed. The point is that the law does permit the special service charge to be based on the total amount of hours spent on a request, so that all of the costs incurred as a result of a massive OPRA request may be recovered.

Important New Trial Court Opinion on Applying OPRA’s Exemption for Security

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A trial court issued an opinion yesterday which provides helpful guidance on OPRA’s exemption for security. WNBC v. Allendale Bd. of Ed. et al. The court determined that this exemption covers information showing the date, time and duration of security drills that are held monthly by schools.

A statute requires schools to conduct regular drills to practice responding to emergency situations that do not involve fires. To enforce this statute, the New Jersey Department of Education requires school districts to fill out forms containing information about each drill. In the WNBC case, the requestor asked a number of Bergen County districts to provide all of these forms for the past few years. The school districts released the forms, but redacted, under the security exemption, the date, time of day, and duration of each drill. Information on lockdown procedures and the identity and location of participants was also withheld, but the plaintiff did not challenge these redactions.

Judge Contillo agreed with the districts’ argument that public disclosure of date/time/duration information would jeopardize the safety and security of the schools and their occupants. He found that the risk was “very real;” the judge concluded that with the information, “a potential assailant could pinpoint when the drills are most likely to occur, and know how long they tend to last, creating a ‘window of opportunity’ in which to inflict maximum damage with reasonable accuracy.” Accordingly, the judge sustained the redactions as falling within OPRA’s exemption for security information.

The opinion is useful because there are few court cases addressing OPRA’s security exemption. Also, two additional important aspects of this opinion should be noted:

(1) This case provides a model example of how an agency should litigate a security exemption challenge under OPRA. Just three weeks ago, the Appellate Division issued an opinion which rejected a municipality’s security exemption argument because the town did not submit certifications that specifically explained the potential risks of disclosure of the record in question. In contrast, in the WNBC case, the districts produced specific evidence of the dangers of disclosure, including a number of certifications by various record custodians, police chiefs and emergency personnel. The judge found this evidence to be persuasive.

(2) The trial court’s analysis of the security argument is relevant to the various pending OPRA cases seeking disclosure of information about the Governor’s travels (discussed in recent New Jersey Law Reporter posts, here and also here). In both WNBC and the travel cases, the key issue is whether disclosing certain information will reveal patterns that a potential wrongdoer can use to get around security measures and cause harm.

In the WNBC opinion, Judge Contillo recognized the danger posed by revealing the past pattern of drills to a person intent on doing harm. For example, the judge said, knowing when drills tend to be scheduled provides information on when the entire school population is likely to be congregated outside an empty building. The plaintiff argued that this risk could be avoided by scheduling future drills randomly.  The judge rejected this position, because the law does not require districts to schedule drills randomly, and consequently a judge has no authority to impose such a mandate upon districts..

In addition, Judge Contillo correctly rejected the related argument–which also comes up in the gubernatorial travel cases–that the security exemption should not apply because someone who wants to cause harm at a school could find ways to do so that do not involve making predictions based on review of past pattern information. The judge astutely observed that this analysis is improper under OPRA: “The inquiry is not whether easier or alternative methods [of inflicting harm] exist, but whether the method at issue–i.e., disclosure of the date/time/duration data–would create a risk to the school community.”

Update: Governor’s Christie’s Trips and OPRA

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This New Jersey OPRA Law Reporter post discusses a pending lawsuit challenging the denial by the Governor’s Office of an OPRA request for the credit card statements that show the specific charges made by the State Police officers who protect the Governor during his trips. As explained in the post, this case involves an important issue that often comes up: whether the expense details must be kept confidential under OPRA, because disclosing them would compromise the ability of the State Police to protect the Governor and other officials. The concern is that the expense information would reveal the size of the State Police’s protective force as well as other security procedures.

Today, many media outlets ran articles on the recently-held oral argument in this case (for examples, see this report by The Record and this report on MSN.com). The articles focus on statements by the judge, during the argument, that the security arguments had been undercut by the fact that at an April town hall meeting, Governor Christie answered questions from a Cub Scout about how many State Police officers travel with him as bodyguards. The judge also noted that the Governor’s Office itself had put the video of the exchange with the Cub Scout on YouTube.

The press reports understandably highlight the Governor-Cub Scout “YouTube moment,” but I think it is unlikely that the judge will decide a case of this magnitude based on a few comments made during a town hall event. Apparently recognizing that the legal issue should not be determined by a YouTube video, the judge permitted the State Police to submit to her a confidential certification, for in camera review, explaining how release of the expense information will interfere with the ability to provide appropriate protection.

This order is the most significant development in the case. It is highly important that the certification, unlike most documents filed with a court, will not be made public. The evidence previously presented to the court on behalf of the Governor’s Office in this case presumably did not contain a detailed description of the protective measures taken by the State Police while traveling with a governor, because such sensitive security information cannot be released publicly. But now, with the ability to submit confidential evidence, the State Police will have the opportunity to provide a full explanation of why the expense records should fall within OPRA’s security exemption.

As stated in the earlier post, this case has broad ramifications concerning the State Police’s  protection of all future governors. Upon review of the confidential certification, the trial judge will be able to resolve conclusively the question of whether disclosure of detailed State Police travel expense information would pose a threat to the security of the individuals guarded by the State Police.

 

An Issue of First Impression: Validity of OPRA Declaratory Judgment Actions Filed by Agencies

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In IMO NJ Firemen’s Ass’n Obligation to Provide Relief Applications Under OPRA, A-2810-13T2, the Appellate Division is considering a novel question– whether a public agency may file a declaratory judgment action asking the court to determine that it properly denied an OPRA request, before the requestor has challenged the denial.

This is an important issue for the New Jersey Press Association, which has filed an amicus brief in the appeal. The NJPA argues that OPRA does not permit agencies to seek declaratory relief concerning OPRA requests, and that allowing such suits would have a chilling effect on requestors.

Despite the NJPA’s arguments, I don’t think that OPRA declaratory judgment suits will adversely affect requestors. These actions simply ask a court to decide the question at the heart of any OPRA dispute–whether public access to a government record is required. It is important to resolve such issues, regardless of whether the court action was brought by a requestor or an agency.

The NJPA’s primary concern appears to be that a requestor who wins a declaratory judgment suit will not receive attorney fees, unlike a successful requestor who has filed an OPRA complaint. However, I doubt the court would so rule, if it determines that an agency may bring a declaratory judgment action. Because it is settled law that attorney fees must be awarded to a requestor who prevails in an OPRA dispute, it is likely the Appellate Division would say that a court must award fees to a prevailing requestor in a declaratory judgment OPRA case, even though the legal action was initiated by the public agency.

Trial Court Upholds Timeliness of Agency’s OPRA Response

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Agencies often find it difficult to respond to a request within OPRA’s tight 7-business-day time frame. Fortunately, the courts have upheld the validity of responses issued after the deadline, as long as the agency can show that it did not unreasonably delay in responding.

A recent trial court opinion, by Judge Grasso in Ocean County, while not precedential, does show how a judge may evaluate the timeliness issue. The OPRA aspect of this case involved requests to the Kean University Board of Trustees for Board meeting executive session minutes. The requestor complained that the Kean Board answered one request approximately 6 weeks after it was made. The request was submitted on December 18, 2014, but the Board explained that the University was closed in late December, and the Board’s executive director did not learn of the request until she returned from vacation in mid-January 2015. The redacted minutes were provided on February 2, 2015.

The judge determined that the University had complied with the statute in this situation, in view of the holiday season and the time necessary for redaction of the records. The opinion does not explain why additional time was needed for the redactions to be made. It appears that the judge essentially concluded that Kean had acted reasonably in fulfilling the request approximately two weeks after the Board’s executive director learned of it.

 

 

 

 

 

 

 

 

Public Officials’ Resumes Are Public–But Not Completely

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OPRA requires disclosure of the resumes of government employees and appointees, so that the public can see the qualifications of those serving in government. But as noted in this recent GRC opinion, Rodriguez v. Kean University, before releasing a resume, a records custodian may need to redact some portions of it.

When OPRA was enacted, there was some question as to whether employee resumes should be treated as confidential documents because they are personnel records. In 2002 Governor McGreevey issued Executive Order 26, to deal with the status of various records under OPRA. One section of this Executive Order requires disclosure of the resumes of successful job applicants.

In Rodriguez, the GRC determined, as it has in other cases, that an OPRA request for certain employees’ resumes should be granted based on Executive Order 26. However, the GRC did not require release of the entire resumes; it specifically ordered disclosure of the resumes “with redactions where necessary,” noting as an example that it has previously upheld the redaction of a home address from a resume on privacy grounds.

Resumes usually contain other information that may be protected by a privacy interest, such as a personal email address and home telephone number. In fact, as discussed in this New Jersey OPRA Law Reporter post, the GRC has held that personal email addresses are confidential under the statute’s privacy provision..

In addition, although not mentioned by the GRC, the Supreme Court has ruled that OPRA’s personnel records section permits disclosure of only a narrow category of information concerning an employee’s education and experience:  the records showing that a public employee meets the specific education and experience qualifications that are prerequisites for his job. This suggests that redactions may be necessary where a resume contains information unrelated to the qualifications specifically required for the employee’s position.

 

Governor Christie’s Trips Require Court to Examine OPRA’s Security Exemption

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Governor Christie’s frequent travel around the country often makes news. It also may produce pivotal, much-needed case law on OPRA’s exemption for security-related records.

In examining the costs of the Governor’s trips, the press has reported that the State Police’s Executive Protection Bureau (EPB), which provides security to governors and other officials, had close to $1 million in travel expenses since Governor Christie first took office. Although the total amount of EPB expenses has been made public, a reporter filed a lawsuit over the denial by the Governor’s Office of his OPRA request for the credit card statements which would show the specific charges made by EPB officers during the Governor’s trips. Judge Mary C. Jacobson, Assignment Judge, Mercer County, is scheduled to hear oral argument in the case on May 28.

The Governor’s Office denied the request on the basis of OPRA’s “security risk exemptions.” As explained in the brief recently filed by the Attorney General’s Office, the records must be kept confidential because they contain “date-by-date” and “transaction-by-transaction” details, information that would reveal the identities of EPB officers and the number of officers providing security. The Attorney General argues that the credit card statements also would provide potential wrongdoers with “deep insight into the EPB’s security procedures.” The brief says that such exposure of EPB security measures would compromise the security of the Governor, other high-ranking officials, and innocent bystanders.

As may be seen, this case has important ramifications beyond interest in Governor Christie’s travels, because it involves the ability of the State Police to protect all future governors. If the detailed expense statements do enable the viewer to figure out EPB security procedures, the risk to anyone protected by the EPB is clear. The court must determine whether disclosure of the information in fact would potentially interfere with the EPB’s protective measures.

This is not a new issue under OPRA; as the Attorney General’s brief notes, litigants have sought access to similar EPB travel records in several other cases. The issue keeps coming up because there is always public interest in the activities of the Governor’s Office and the State Police. Despite this, no New Jersey court has rendered a precedential opinion on whether OPRA requires disclosure of EPB expense records.

It is time for the trial court in this case–or if there is an appeal, a higher court–to issue an opinion that resolves the question of whether these records are covered by OPRA’s security exemption.

GRC: Internal Affairs Investigations of Police Officers are Exempt from Disclosure

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OPRA requests for information about complaints against police officers are common, particularly in view of recent high profile controversies involving encounters between the police and citizens. The Government Records Council has consistently ruled that records of citizen complaints about police officers, and police department internal affairs investigations of specific officers, may not be disclosed, under OPRA’s exemption for personnel records.

The GRC recently reaffirmed this conclusion in Wares v. Passaic County Sheriff’s Office. In this case, the requestor asked for all complaints from the public and internal affairs investigations regarding several sheriff’s officers. The GRC upheld the denial of the request on the ground that these documents fall within the personnel records exemption, noting that this statutory section covers records relating to any grievance filed by or against a public employee.

As noted in this post, the question of the confidentiality of police internal affairs investigations is currently before the Appellate Division. The trial court opinion under appeal rejected, with little analysis, the argument that the personnel exemption applies. It will be interesting to see if the appellate court agrees with the GRC’s approach to the issue.

Pending Case Asks: Does OPRA Require an Agency to Create a Report from a Database?

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The storage of information in electronic databases raises an issue that often comes up under OPRA but has yet to be decided by the appellate courts: must a custodian comply with a request for a report showing certain information contained in an agency database? Put another way, is this type of request–which involves compiling a variety of information from a database– legally invalid because it requires the creation of a new record?

This issue is currently pending before the Appellate Division in Paff v. Galloway Township, A-000125-14T4. New Jersey OPRA Law Reporter previously discussed this case briefly here, focusing on its potential impact on law enforcement agencies. But this appeal affects all agencies, not just the law enforcement community, because the question at the heart of the case concerns the validity of all OPRA requests for compilation of information from any database. The importance of the case is shown by the fact that the League of Municipalities, the New Jersey ACLU and the New Jersey Association of Chiefs of Police have filed amicus briefs with the court.

Galloway has appealed the trial judge’s grant of a request for a log showing the sender, receiver, date, time and subject matter of each email sent by the township’s police chief during a two-week period. The argument that this request is invalid is straightforward–the log must be created by the Township, and case law says that OPRA does not obligate an agency to create a new record. The opposing argument is also straightforward–OPRA requires production of the log because the statute defines a government record as including “information stored or maintained electronically,” and the requested email information is maintained in Galloway’s electronic records.

Neither the Supreme Court nor the Appellate Division has addressed this conflict between OPRA’s language and the rule that OPRA does not require the creation of a record. Resolution of this issue will have a wide impact beyond the specific question in the Paff appeal of access to a log of email information. Many OPRA requests seek reports drawn from electronic databases. This appeal should provide crucial guidance on whether the law requires agencies to produce such reports.