Tag Archives: privacy

2023 OPRA Case Law Review

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The courts issued were many OPRA case rulings during 2023, but only a handful of precedential opinions. However, the three precedential opinions resolved crucial government records law questions.

In June, the Supreme Court issued a landmark opinion, Gannett v. Neptune Tp., holding that a successful common law records requestor is not entitled to an award of attorney fees. This ruling ended decades of uncertainty as to whether common law requestors, like OPRA requestors, may demand that public bodies pay their litigation fees.

The Appellate Division issued two published opinions involving OPRA. Just before the end of the year, the court determined that the custodian had properly withheld disclosure of a body worn camera video under OPRA’s exemption for the confidentiality of law enforcement records concerning a person who has not been arrested or charged with a crime. Fuster v. Tp. of Chatham. This holding rested on the court’s resolution of an issue of first impression–it concluded that the disclosure exemptions of the body worn camera statute do not rescind other exemptions provided for in OPRA.

Lipsky v. NJ Assn of Health Plans dealt with a frequent issue for OPRA custodians–how to respond to a request for records potentially contained within employees’ cell phones. The Appellate Division ruled on a discovery dispute, holding that a party in pending litigation may not compel a non-party State agency to turn over its employees’ State-issued and personal cell phones to the party’s expert for forensic examination. This conclusion relied heavily on OPRA law. The Appellate Division emphasized that public employees have strong privacy interests in their phones’ contents, so where there’s an OPRA request for records from employees’ phones, it is improper for the agency to search the device for responsive records. Instead, to protect the privacy interests at stake, the agency must ask employees to conduct the search of their devices for responsive records.

Appellate Division: Police Body Cam Video Revealing Criminal Allegations against an Individual who was not Charged With A Crime Is Not Disclosable Under OPRA and the Common Law

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The Appellate Division, in a recent published opinion, addressed an issue of first impression: whether the exemptions from disclosure of a police officer’s body worn camera (BWC) footage, which are set forth in the statute governing such cameras, abrogate other disclosure exemptions found in OPRA. The court determined that although the BWC statute provides for withholding BWC videos under certain circumstances, OPRA’s exemptions also continue to apply to such videos.

Specifically, the court held that the custodian had properly withheld disclosure of a BWC video under OPRA’s exemption for confidentiality recognized by case law–here, the confidentiality accorded to law enforcement records concerning a person who has not been arrested or charged with a crime. Fuster v. Tp. of Chatham.

Fuster went to the police with allegations that a relative had engaged in criminal sexual misconduct. Fuster was interviewed about his allegations at the police station, and the interview was recorded by an officer using a BWC. The police and other agencies investigated further and eventually decided not to file charges against the relative.

Fuster subsequently filed with the police department an OPRA and common law request for the BWC video. It was not disputed that the video fell under OPRA’s exemption for the recognition by case law of the need for maintaining the confidentiality of investigative records regarding a person who has not been arrested or charged. Instead, the requestor argued that the OPRA exemption could not be applied, on the ground that the Legislature abrogated this exemption in the BWC statute, enacted in 2021.

The requestor’s claim rested on the fact that the BWC statute provides for a few specific situations where a BWC video may be withheld from public disclosure (none of which applied to the video in this case). Based on this, the requestor reasoned that the Legislature intended to rescind all other OPRA exemptions with regard to BWC videos.

The court rejected this argument; it concluded that the legislative purpose of the BWC statute was not to override OPRA, but rather to add some exemptions to OPRA’s existing exemptions. The court saw no basis for concluding that the BWC statute meant to abolish OPRA’s requirement that a record that would disclose the identity of a person who was never arrested or charged with a crime must be kept confidential.

The court also held that under the common law, the requestor’s interest in disclosure of the video did not outweigh the strong privacy and investigatory interests that support confidentiality of the record in question here.

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

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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.

Supreme Court Holds That Police Internal Affairs Reports are Confidential Under OPRA, But May be Accessed Under The Common Law

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The Supreme Court issued its second OPRA opinion in March, Rivera v. Union Prosecutor. As I predicted, the Court held that records of police internal affairs investigations are exempt under OPRA, but ordered release of the internal affairs report in question under the common law.

Prior Supreme Court opinions indicated that internal affairs records are not accessible under OPRA. In Rivera the Court put to rest any possible claim that these records may be obtained through an OPRA request. It held that internal affairs reports are exempt because the Attorney General’s Internal Affairs Policy and Procedure, which has the force of law, requires their confidentiality.

The Court also stated, consistent with settled law, that this type of exempt record may be accessed under the common law, if in the particular situation, the interest in disclosure outweighs the need for confidentiality. The Court reiterated the important confidentiality considerations that must be taken into account in conducting this balancing, and it also provided guidance on the factors that may favor disclosure of an internal affairs report.

The Court held that the report at issue in the case should be made public under the common law, as it concerned a matter of considerable public interest, involving racist and sexist misconduct by the City of Elizabeth Police Director. The Court remanded the case to the trial court to conduct the common law balancing test to determine specifically what portions of the report should be made public. Notably, the Court also stated that the trial court must ensure redaction of information in the report that warrants confidentiality, including names of complainants, witnesses, informants, and cooperators; personal information of officers and other individuals; and other information protected by privacy interests.

A Pending Appellate Division Case Presents Two Important OPRA Issues

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Several municipalities are in litigation with the organization Rise Against Hate over requests for residents’ email addresses. One of these cases, involving Cherry Hill, is pending in the Appellate Division. Cherry Hill appealed the trial court’s ruling that OPRA’s privacy section does not protect email addresses from disclosure.

There is no precedential case law on whether email addresses must be disclosed under OPRA. I think there’s a strong argument that people have a reasonable expectation of privacy in their email addresses, and therefore this information should typically not be obtainable through an OPRA request. However, I’m not confident the court will agree with this position, in view of the extremely limited effect the Supreme Court and the Appellate Division have given to OPRA’s privacy provision in recent cases.

The Cherry Hill appeal presents another important issue, which I’ve never seen raised before: whether a requestor is permitted to refile its OPRA request, after the custodian denied the request and the requestor did not file a court challenge to the denial within the 45-day statute of limitations. The trial judge concluded that a requestor may submit the same request again, despite the failure to meet the statute of limitations, on the ground that OPRA does not prohibit requestors from refiling their requests.

This determination is plainly incorrect. It misses the point that the Supreme Court expressly held that OPRA has a 45-day statute of limitations for requestors who want to challenge a denial in the Law Division. Mason v. City of Hoboken. The trial court’s decision makes the Supreme Court’s decision meaningless, by allowing requestors who fail to meet the complaint filing deadline to simply file the same request again. The result is that there is no statute of limitations–precisely the opposite of what the Supreme Court mandated.

Major OPRA Case Law Expected in 2022

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This year will see at least two Supreme Court opinions on crucial public records issues.

Libertarians for Transparent Govt v. Cumberland County involves the question of whether a settlement agreement between a public body and its employee, which resolves an internal disciplinary action against that employee, is an exempt personnel record. As I’ve previously discussed, this has always been considered to be a confidential personnel record. Will the Supreme Court depart from this longstanding rule?

In the other pending Supreme Court case, Rivera v. Union County Prosecutor, the Court will determine whether police department internal affairs reports at issue, concerning alleged misconduct by a city’s police director, must be disclosed under OPRA and the common law. Since the Supreme Court held in 2020 that police internal affairs records are confidential under OPRA, it seems unlikely it will reverse that position here. I think it’s more likely that this case will focus on whether the records in question should be made public under the common law.

In addition to these Supreme Court opinions, public bodies should expect disputes and litigation related to interpreting some of the cases decided in 2021. I anticipate more claims seeking attorney fee awards for litigating common law record requests, in view of last year’s precedential opinion of the Appellate Division permitting such awards in common law cases. And the extent of OPRA’s privacy protection will continue to be a hot issue; this is currently the subject of a number of pending cases, specifically involving requests for individuals’ email addresses.

2021 OPRA Case Law Review: A Year of Landmark Opinions

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In every year since OPRA’s enactment in 2002, the Supreme Court and Appellate Division have issued opinions with far-reaching impact on OPRA law and procedure. 2021 was no different. Some of the cases decided this year constituted landmark developments in New Jersey public records law.

In Bozzi v. Jersey City, the Supreme Court resolved an issue that municipal custodians have struggled with since OPRA’s enactment, in holding that the names and addresses of those who have obtained dog licenses must be disclosed. The Court’s opinion also addressed, for the first time, the larger question of whether a person’s home address is protected by OPRA’s privacy requirement. The Court effectively concluded that OPRA does not shield home addresses from public disclosure.

In another landmark case, the Supreme Court upheld the Attorney General’s requirement that the names of police officers who have committed serious disciplinary violations must be made public.

The third Supreme Court OPRA opinion, issued in 2021, Banfi v. Mercado, said a police department is required to respond to an OPRA request for electronic information concerning complaints and summonses, where police officers entered such arrest-related information into the Judiciary’s Electronic Complaint Disposition Record (eCDR) system.

The Appellate Division issued a significant opinion in Gannett v. Neptune Twp. The court held that a police officer’s internal affairs file, although exempt from disclosure under OPRA, is subject to disclosure under the common law. This opinion also contained an even more important ruling concerning common law record requests: the court held, for the first time in a published Appellate Division opinion, that successful common law requestors are eligible to be awarded attorney fees.

The other major Appellate Division case was Doe v. Rutgers. In addition to being one of the few cases to discuss OPRA’s provisions relating to higher education student records, the opinion also discusses a situation that many custodians often have confronted–an OPRA request asking for all records related to the agency’s response to that request. The court stated that this was an invalid request, because the records sought did not exist at the time the request was made. And more crucially, the court further indicated that these records would not be disclosable, because they fall within the deliberative process exemption.

Wag the Dog: Supreme Court’s Bozzi Opinion Makes Most Home Addresses Public Under OPRA

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In Bozzi v. Jersey City, the Supreme Court recently resolved a longstanding issue in holding that OPRA requires disclosure of the names and home addresses of individuals from their dog license records. But the impact of the Court’s opinion is not limited to dog owners; the Court effectively ruled that home addresses are not protected from disclosure by OPRA’s privacy requirement.

The majority opinion in Bozzi held that those who obtain dog licenses don’t have even a “colorable claim” to a reasonable expectation of privacy in their names and addresses. This conclusion rests entirely on the dubious assertion that “owning a dog is, inherently, a public endeavor” (emphasis mine). Even assuming this proposition is correct, the flaw with this analysis of the privacy interest, as identified by Justice Pierre-Louis’ dissent, is that “dog owners appearing in public with their dogs do not do so while simultaneously advertising their full names and addresses.” For this reason, as the dissent pointed out, dog owners likely do not envision that the government will turn over this personal information to the public pursuant to OPRA requests.

Unfortunately, the majority opinion did not follow this sensible approach, and instead adopted an analysis that provides virtually no privacy protection for a person’s home address under OPRA. After Bozzi, where there’s no specific statute providing confidentiality to an address in a particular record, OPRA requires disclosure of the person’s address. The only circumstance where a home address would possibly be confidential under OPRA’s privacy section is when the OPRA request for a home address is linked with disclosure of other clearly private information–such as receipt of financial assistance benefits (Matter of Firemen’s etc) or a person’s social security number (Burnett v. County of Bergen).

Apart from such exceptional situations, there appears to be no basis for withholding a home address under OPRA’s privacy provision.

Supreme Court: OPRA Requires Disclosure of Names and Addresses from Dog License Records

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The Supreme Court today issued an opinion settling a problematic question that has come up countless times since the enactment of OPRA: whether OPRA requires disclosure of the names and home addresses of individuals who provide this information to the government when applying for a dog license. In Bozzi v. Jersey City, the Court held that this personal information must be disclosed to an OPRA requestor.

The legal issue before the Court was whether OPRA’s privacy provision protects dog owners from having their names and addresses made available to the public. The Court said the privacy section does not apply, because there is no “colorable claim that the disclosure of the requested dog license records would invade a dog owner’s reasonable expectation of privacy.” According to the Court, “owning a dog is, inherently, a public endeavor,” and therefore an owner cannot expect privacy with regard to the name and address information submitted for purposes of obtaining a dog license.

The Court did say that other information contained in dog license records should be withheld, based on security concerns: breed information, the purpose of the dog (companion, service dog, or law enforcement), and the name of the dog. The last exclusion is based on the Court’s recognition that many people use the names of their pets as passwords or answers to security questions.

In a separate post, I’ll discuss my view of the Court’s reasoning, as well as the implications of the Bozzi opinion for future OPRA matters.