Appellate Division Upholds Regulation Exempting Officer Duty Assignment Information

Leave a reply

In this opinion, the Appellate Division rejected the ACLU’s challenge to 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. This is the first time the appellate court has addressed, under OPRA, the validity of a regulation precluding access to a record.

The regulation exempts a law enforcement officer’s duty assignment, as well as any information that may reveal the assignment, including “overtime data pertaining to an individual law enforcement officer.” The ACLU argued that this exemption is contrary to OPRA’s requirements and the public interest. The court disagreed. It determined that a law enforcement officer’s duty assignment falls within OPRA’s exemption for personnel records. The court also emphasized that the Department’s regulation is consistent with the public interest, by protecting officers and the public.

The court’s opinion also dealt with a separate appeal by the New Jersey 2d Amendment Society, which sought disclosure of the State Police’s Firearms Applicant Investigation Guide. This case involved another Department of Law and Public Safety OPRA regulation, which exempts from disclosure certain types of standard operating procedures.The Appellate Division did not rule on the request for the Guide, but instead remanded the case to the trial court for consideration of whether the Guide fell within the exemption regulation.

As a result, this part of the opinion is of limited usefulness for agencies. On the other hand, agencies should be aware of the portion of the opinion discussing the duty assignment regulation, as it contains valuable guidance for dealing with issues presented by OPRA requests for this type of information.

While the opinion has resolved the key question of the validity of the duty assignment regulation, there are still many open issues. One is whether a law enforcement officer’s overtime information can be confidential. The regulation expresses the Department’s position that there are situations where overtime information may reveal an officer’s duty assignment. The court did not discuss this issue, but it “caution[ed]” the State Police against improperly denying access to overtime information, which is typically open to the public. This tension between the need for confidentiality of officer duty assignments and the interest in disclosure of a public employee’s compensation is sure to generate more litigation.

Appellate Division Opinion: Bloomfield Township Must Disclose Building Security Camera Recordings

Leave a reply

On May 13, 2015, in a precedential opinion, the Appellate Division held that Bloomfield Township should not have denied an OPRA request for a day’s recordings of a video camera stationed at the back of its municipal building. See Gilleran opinion. What’s truly significant about this opinion is that although disclosure was ordered in this case, the court emphasized that custodians are not always required to release such videos, and the judges provided helpful guidance as to how to handle future requests for such records.

The Township argued that it properly denied the OPRA request for the security camera recordings on the basis of the statute’s exemptions for “security information or procedures for any buildings…which, if disclosed, would jeopardize security….” and “security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons [or] property….” It relied on a certification by its Administrator, which stated that the camera is part of the building’s security system, and also noted that the area shown by the camera may be used by police officers, informants and crime victims.

The court rejected the argument that a building security camera’s recordings are per se exempt from disclosure, and held that the Administrator’s certification was too general to support confidentiality; in the words of the court, the certification “was not sufficiently specific to establish a risk to the safety of any person or property or jeopardy to the security measures taken for the building.” Therefore, Bloomfield failed to satisfy its burden of proving that the recordings were exempt.

But the court stated that its ruling in favor of disclosure was based only on the inadequate certification submitted by Bloomfield. The court went on to provide examples of statements in a certification that could potentially satisfy the security and safety exemptions. For example, there were no statements from the police indicating that the identity of informants or victims would in fact be revealed by the videos, nor was there a specific explanation of how the security system would be compromised.

The court recognized the critical law enforcement interests at stake where a requestor seeks disclosure of a building’s security camera, commenting: “In an age when security and surveillance camera recordings may be vital to the identification and prosecution of criminal offenders, and may provide a deterrent against planned acts of violence and other criminal conduct, we do not agree indiscriminately with…[the] argument that the public has an ‘unfettered’ right of access to security camera recordings with the exception of precise and very limited redactions.”

In addition, the court gave custodians guidance on how to handle a request for a video showing hours of recordings. When this occurs, said the court, the agency is not obligated to review all of the footage and withhold only the parts showing confidential information. The court rejected this approach (which had been suggested by the requestor here) as “impractical,” “unreasonably burdensome,” and not within the Legislature’s contemplation. Instead, the request may be denied, if supported by the type of evidence of potential security harm described above.

In short, the Gilleran opinion is important and likely to be cited often by agencies.

As a side issue, it’s interesting to note that the court mentioned, in a footnote, that its opinion does not address the privacy issues raised by OPRA requests for recordings made by police body cameras. This New Jersey OPRA Law Reporter post discusses these issues.

 

GRC: Redaction of Personal Email Addresses is Proper

Leave a reply

Record custodians often deal with government business emails sent from or to a personal  account. In a recent decision, D’Andrea v. N.J. Civil Service Comm., the GRC reaffirmed its prior rulings that personal email addresses are protected by the expectation of privacy and should be redacted. The GRC noted that while the public is entitled to know the identity of the individual who sent or received the email, the personal email address is private.

Because the New Jersey courts have not yet addressed this issue, agencies should look to the GRC’s decisions for guidance on handling personal email addresses shown in a government record.

Izod Center OPRA Case: How To Handle An Overbroad Request

Leave a reply

A trial judge recently issued this opinion dismissing Senator Loretta Weinberg’s lawsuit against the New Jersey Sports and Exposition Authority (NJSEA) over its response to her OPRA request for information concerning the closure of the Izod Center. Although this opinion doesn’t carry the weight of judicial precedent, it’s of interest because it shows how an agency and a judge dealt with a common problem under OPRA–how to handle OPRA requests that are overbroad and improperly fail to identify specific records.

The request in issue here was a classic example of an information demand that is not valid under OPRA case law. The request had 16 parts and sought a wide range of information, including all documents “related in any way” to the agency’s consideration of and decision to close the Izod. Also, many of the sections of the request asked for all records concerning other broad topics. For example, one part sought any documents showing discussions or communications with “any individual or entity” concerning the Prudential Center’s plan to “explore investment opportunities in real estate projects near the Prudential Center within the previous five years.”

In my view, the NJSEA responded to this improper request in a sensible way that minimized its litigation risk. The agency could have simply denied the entire request outright on the ground that it failed to ask for specific records and required the custodian to conduct research. Instead, it advised Sen. Weinberg’s office that much of the request was overbroad and asked that it be clarified and narrowed. In addition, the agency indicated that it would supply some records, but needed more time due to the voluminous nature of the request. It eventually released approximately 400 documents and offered to meet with the requestor to discuss further.

The requestor declined to narrow the request  and filed suit. Judge Doyne held that the request was invalid because it required the custodian to conduct research and exercise discretion in order to respond. The judge said the custodian would have to interview agency employees to determine what documents might, for example, relate to their consideration of the closure decision, and then exercise discretion as to which of these documents were responsive.

The judge concluded that this procedure would violate the basic principle under OPRA that it is up to the requestor to identify the records sought, rather than force the custodian to make that judgment.

The judge’s decision was also influenced by the NJSEA’s efforts to work with the requestor and provide some documents. The fact that the NJSEA released documents did not alter the invalidity of the OPRA request. As the judge astutely observed, the NJSEA should not be found in violation of OPRA for making good faith attempts to reach a resolution of the improper request, consistent with OPRA’s policies favoring cooperation between requestors and agencies.

New York Times Article on Pros and Cons of Public Access to Police Camera Videos

Leave a reply

This New York Times article of April 26, 2015 discusses issues that are being raised across the country with regard to giving the public full access to the recordings made by police body and motor vehicle cameras. The article’s title–“Downside of Police Body Cameras: Your Arrest Hits YouTube”– nicely summarizes the problem: privacy interests may be harmed if a video of any person’s interaction with the police is available to the public. This concern results from the assumption that public record laws would require disclosure to a requestor of any police camera video recording. The article notes that many states are seeking to amend their laws to preclude access to such videos.

New Jersey law does not have a specific provision governing disclosure of police camera videos, but the Appellate Division is considering the question of whether these videos fall within one of OPRA’s exemptions from disclosure. See this New Jersey OPRA Law Reporter post. The Appellate Division case focuses on the applicability of OPRA’s sections affording confidentiality to records in criminal investigations, but as the Times article shows, the statute’s requirement that agencies protect individuals’ privacy interests should also be taken into account in considering whether videos should be released.

In New Jersey, police departments should expect to confront the privacy issue whenever they receive requests for disclosure of a video, regardless of whether a criminal investigation is involved. The police come in contact with members of the public in a variety of ways that do not involve criminal activity or an arrest, from routine traffic stops to helping at the scene of an accident. OPRA custodians for police departments will have to deal with the sensitive issue of whether releasing videos in these situations–in effect, allowing them to be posted on the internet– will harm the privacy interests of the individuals shown in the videos.

Until a court addresses this issue, custodians will have to assess the privacy question on a case-by-case basis, under the test established by the Supreme Court in its Burnett opinion, which calls for balancing the requestor’s interest against the affected individual’s privacy interest.

 

Significant OPRA Issues To Be Decided By Appellate Division

Leave a reply

There are a number of cases now on appeal that involve important OPRA issues. For a summary of pending appeals of particular interest to law enforcement agencies, see this New Jersey OPRA Law Reporter post. Here are two other appellate matters that will have a major impact on all New Jersey public agencies that are covered by OPRA.

-Gannett v. Borough of Raritan, A-3999-13T1

This appeal involves significant issues concerning access to records in electronic format and the amount a public entity may charge the requestor for converting the records to that format. The case is especially notable because the court must determine the reasonableness of the $600,000 attorney fee award granted to the plaintiff for prevailing. This is far and away the largest attorney fee award under OPRA.

-IMO NJ Firemen’s Assn Obligation to Provide Relief Applications Under OPRA, A-2810-13T2

This appeal presents 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.

 

Trial Court Grants Enhanced Attorney Fee Award to OPRA Plaintiff

Leave a reply

A public agency faces the risk, in litigating an OPRA matter, of paying the plaintiff’s attorney fees if the plaintiff prevails in the case. To assist agencies in evaluating the potential cost of a records dispute, this blog will report on court-ordered attorney fee awards under OPRA.

In a recent case, Ganzweig v. Tp. of Lakewood, the trial judge awarded $21, 401.10 in attorney fees to a successful OPRA plaintiff. In making this award, the judge accepted as reasonable the $315 hourly rate requested by attorney Walter Luers, Esq., who frequently represents plaintiffs in OPRA litigation.

The award in this case is of particular interest because the judge added a 30% contingency enhancement, increasing the total amount awarded by several thousand dollars. Although trial judges are permitted to enhance a fee award, the New Jersey Supreme Court has cautioned that such an increase is rarely appropriate in OPRA matters. The Ganzweig opinion shows that despite the Supreme Court’s effort to limit enhancement of OPRA attorney fee awards to exceptional cases, trial courts will provide OPRA plaintiffs’ attorneys with substantial fee increases in cases presenting novel legal issues.

Law Enforcement Alert: Major OPRA Decisions Coming

Leave a reply

Surprisingly, there are only three published court opinions dealing with law enforcement records under OPRA, and two of them, Serrano and Courier News, involve the same record (911 call tapes). See also O’Shea (use of force reports). But the lack of such case law is about to end, as several important issues concerning OPRA’s law enforcement and security provisions are now pending with the Appellate Division. Over the next several months, the law governing access to critical law enforcement records may be dramatically different.

The following is a list of the major law enforcement-related cases before the court:

-In re Adoption of N.J.A.C. 13:1E-3

A challenge to the validity of a regulation promulgated by the Department of Law and Public Safety, which establishes an OPRA exemption for information that may lead to revealing the duty assignment of a law enforcement officer, including the amount of overtime paid to an individual officer.

-North Jersey Media Group v. Township of Lyndhurst, et al.

The Attorney General, on behalf of the State Police, appeals a trial court ruling which granted a newspaper’s request for disclosure of the records concerning the investigation of the fatal shooting by police of a black man during a chase. The key issue before the Appellate Division is whether these records, which include incident and investigative reports, are exempt criminal investigatory records under OPRA. See this New Jersey OPRA Law Reporter post describing this case in more detail.

-Paff v. Bergen County

The issue in this appeal is whether the names of officers and complainants shown in internal affairs complaints  must be disclosed.

-Paff v. Galloway Tp.

The issue in this appeal is whether the township must create and disclose a log of all emails sent by the police chief during a 2-week period. The trial judge granted the request for a log showing the sender, receiver, date, time and subject matter of each email. The Township appealed and several organizations have joined the case as amici, including the League of Municipalities, the NJ Association of Chiefs of Police and the NJ ACLU. In its brief, the Police Chiefs Association expresses its concern that the trial court ruling is inconsistent with the confidentiality needed for investigations and will have a “crippling effect” on police departments.

-Dashboard camera videos

It appears that the Appellate Division will address the question of whether videos taken by police dashboard cameras are public records. Although several trial courts have ordered disclosure of such videos, the Appellate Division has not resolved the issue. However, the Ocean County Prosecutor’s Office has indicated it will appeal such an order by Judge Grasso, in Ganzweig v. Lakewood Township. Because Judge Grasso awarded the plaintiff attorney fees in Ganzweig last month, the case is now final and appealable.

 

Oral Argument Held in Important Case on Criminal Investigatory Record Exemption

Leave a reply

On April 21, 2015, the Appellate Division held oral argument in North Jersey Media Group, Inc. v. Township of Lyndhurst, et al. (“Lyndhurst”). All law enforcement agencies should be aware of this appeal, which concerns the confidentiality of police investigations. The court’s opinion will likely set key precedent on the interpretation of OPRA’s exemption for criminal investigatory records.

The case involves a newspaper’s request for records of a criminal investigation into the fatal shooting by local police of a black suspect during a chase. The newspaper essentially asked for all records connected with the investigation, including police vehicle video and audio recordings, police log entries, incident and investigation reports, as well as “all police reports.” The State Police released some information, as required by OPRA’s ongoing investigation section, N.J.S.A. 47:1A-3b, and also disclosed public records, such as tapes of 9-1-1 calls. It denied access to the rest of the requested records under the criminal investigatory records exemption.

The trial judge, however, held that this exemption did not apply to any of the records. According to the judge, the State had failed to prove that the various police reports made as part of the investigation were not required by law to be made, maintained or kept, and therefore did not fall within the statute’s exemption for criminal investigatory records. As a result, he ordered that all requested records be disclosed.

The Attorney General, on behalf of the State Police, appealed the trial court’s ruling, and obtained from the Appellate Division a stay of the disclosure order pending appeal. The court has proceeded quickly with the appeal, holding argument only three months after the appeal was filed.

I know, from my experience in arguing hundreds of cases before the Appellate Division, that no one can  predict with absolute certainty the outcome of an appeal based on the comments and questions of the judges at oral argument. However, my impression, from watching the argument in this case, is that the judges were uncomfortable with the trial court’s broad determination that the criminal investigatory exemption simply did not apply to any of the records in the investigatory file. The judges’ questioning of the parties’ attorneys appeared to suggest that they agree with the State’s argument that the exemption covers the type of records involved here. I think the judges may issue an opinion stating that the criminal investigatory exemption does apply here, and remanding the matter to the trial court for review of specific records in the file.

In response to a judge’s question about a potential remand, the newspaper’s attorney contended that if there were a remand proceeding, the State should supply his client with an index describing each document. The State’s attorney responded with a cogent explanation of the danger of requiring this approach: it would enable the target of a criminal investigation to obtain a description of the investigatory file concerning him. The judges did not give an indication of how they would rule on this issue.

In my view, the criminal investigatory exemption clearly should have been applied here.  The legislature intended to protect the confidentiality of criminal investigations by precluding public access to the various reports and records created by law enforcement officers in the course of the investigation–precisely the records in question in this case. And this policy in favor of confidentiality would also be undermined by requiring disclosure of a detailed index of all documents held by the investigating agency, which would effectively reveal the direction of an uncompleted investigation.

The significance of this appeal for the law enforcement community cannot be overstated. The court’s opinion will directly affect the operations of law enforcement agencies. If the Appellate Division agrees with the trial court’s analysis, most criminal investigatory records will be subject to release. If the court reverses and hold that the records are confidential, the analysis in the court’s opinion will govern how agencies must respond to OPRA requests for investigative records.

Appellate Division Opinion–When A Custodian Must Supply A Privilege Log To The GRC

Leave a reply

In an unpublished opinion, Katon v. NJ Dept. of Law and Public Safety, the Appellate Division emphasized that a custodian must provide to the GRC a document-by-document description and argument when various exemptions are claimed for a number of records. Although unpublished court opinions are not precedential, this opinion is useful because it shows how a court reacted to the common situation of a case involving numerous documents which are subject to several different exemptions.

The Katon case involved three parts of a request to the Office of the Attorney General (OAG) for:

(1) All records collected and/or created as part of the [OAG’s] fact-finding review of intelligence gathering conducted by the New York Police Department (NYPD) in New Jersey…

(2) All records upon which OAG relied for its determination that the NYPD’s activities in the state did not violate New Jersey civil or criminal laws.

(3) All records reflecting the OAG’s determination [with regard to the legality of the NYPD’s activities]….

The custodian indicated that there were 610 pages of responsive documents and withheld all of them. Before the GRC, the custodian did not describe each of these records or present arguments about specific documents. Instead, the custodian argued that all of the documents were confidential, under the exemptions for attorney work product, attorney-client privilege, deliberative process privilege, and security and surveillance measures and techniques. The GRC upheld the denial on the basis of the deliberative process privilege, and did not address any of the other cited exemptions.

The Appellate Division agreed that request no. 2 was properly denied because it sought exclusively deliberative material. The court said that by definition, a request asking what records were “relied upon” by the agency in making its decision would expose the agency’s deliberative process.

However, the court found that the deliberative process privilege did not similarly apply automatically to the remaining requests, and therefore, said the court, each responsive document would have to be reviewed to determine whether it fell within the deliberative process privilege, or one of the other claimed bases for confidentiality. The court remanded the case to the GRC for such review, holding that the custodian must supply the GRC with a privilege log identifying the withheld documents and explaining the basis for the confidentiality of each one.

This opinion is a reminder that when multiple exemptions are claimed for a number of records, and that decision is challenged before a court or the GRC, the custodian cannot simply make general arguments about the confidentiality of the documents. Instead, the custodian must provide the tribunal with some type of index that shows why each individual record should be considered exempt from disclosure.