Yes, You May “OPRA an OPRA Request”

For years, individuals have filed OPRA requests with agencies to obtain all of the OPRA requests an agency has received during a specific timeframe.  Requestors use these records in a variety of ways, such as a) finding out how many OPRA requests an agency is handling during any specific timeframe (since agencies have no obligation to calculate that information and let the public know); b) being able to contact another member of the public who is interested in the same type of government issues; c) learning more about government by seeing what other requestors are seeking from their government.

While local governments have generally continued to comply with such requests, unfortunately in 2014 the State began denying all requests for OPRA requests (perhaps not coincidentally, when the requests began to ask for other requests about the Bridgegate scandal).  The trial court ruled against the State, but the matters were stayed.  Accordingly, since 2014, requestors have not been able to obtain copies of OPRA requests that were filed with any State agency.

Recently, however, the Appellate Division issued a published opinion and rejected the State’s appeal.  In Scheeler v. Office of the Governor, __ N.J. Super. __ (2017), the Appellate Division held that there is no blanket exemption that permits an agency to deny access to all OPRA requests that were filed with the agency.  While the Court noted that there may be circumstances where a single OPRA request might invoke a confidentiality concern (such as containing trade secrets), overwhelmingly that will not be the case.

The Court also re-affirmed its prior holdings and concluded that a request for all OPRA requests filed during a specific timeframe was valid and did not require “research.”

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.

The Third Exception to OPRA’s Personnel Records Exemption

The third exception to OPRA’s personnel records exemption provides that:

data contained in information which disclose conformity with specific experiential, educational or medical qualifications required for government employment or for receipt of a public pension, but not including any detailed medical or psychological information, shall be a government record.

[N.J.S.A. 47:1A-10.]

In Kovalcik v. Somerset Cty. Prosecutor’s Office, 206 N.J. 581, 593 (2011), the Supreme Court has made it clear that this exception does not authorize disclosure of all records that “evidence an employee’s educational background or even that evidence an employee’s participation in educational pursuits generally.”  Rather, the Court held that the exception makes available only records “that would demonstrate that a government employee lacked a required credential and therefore failed to meet the minimum qualifications for the position.”

What this means is that if there is a certain training certificate or license or degree that must be obtained in order to hold a government position (or to receive a promotion), then the public is entitled to know that information.  So, a requestor could seek a copy of a Municipal Clerk’s RMC (Registered Municipal Clerk) license and continuing education certificates, N.J.S.A. 40A:9-133 requires clerks to receive an RMC certificate.  Similarly, if a requestor seeks a list of training courses that a police officer has taken, the agency must produce the list but may redact any courses that are not mandatory.

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.

A4532 Will Hinder Transparency

This week, Assembly Bill A4532 passed out of the State and Local Government Committee and will likely be voted on by the Assembly at some point in the near future.  This bill will severely hinder transparency in this State in two ways.

First, A4532 creates a new exemption for “personal government records,” which are defined as records “that consists of or pertains solely to a pet or home alarm system permit, license, or registration.”  While I understand that the sponsor of the bill is concerned that businesses utilize these lists as marketing tools, these lists can be very valuable resources to members of the public.  For example, animal rights advocates routinely use lists of pet license holders to notify pet owners that the local animal shelter has health code violations or inhumane conditions.  As a result of such activism, shelters have been placed into new management or shut down altogether.  Other animal rights advocates have used the list to expose backyard breeders who do not have their pets licensed.  If these records are exempted from public access, it will be much harder for these advocates to advance their cause.

Second, as it is currently written, A4532 changes OPRA’s mandatory fee-shifting provision so that an agency that acts in “good faith” and is “reasonable” will not have to pay fees even if the court rules in the requestor’s favor. Such a change will gut OPRA.  The mandatory fee-shifting provision is what gives OPRA “teeth” because it permits requestors to sue to gain access to records and be assured that their attorney fees will be covered.  If fees are only provided where the agency was unreasonable or acted in bad faith, then cases of first impression will not be litigated because it will be too easy for the agency to say they were “reasonable” in denying a request since they had no guidance.  Additionally, in any case where there is a conflict in legal authority (such as a GRC decision that conflicts with a court decision), the agency will try to escape fees by saying they were “reasonable” in following one instead of the other.

Simply put, without the assurance of a mandatory fee, requestors will be unable to find attorneys who will represent them on a contingency basis.  This means that cases will not be litigated and the State will be less transparent as a result.

According to John Paff, the sponsors of the bill insist that they did not intend for the fee-shifting provision to be altered as to all types of OPRA cases and only intend to change it as to “personal government records.”  The bill as written, however, simply does not say that.  Moreover, if there is a blanket exemption for “personal government records,” there is no need to change the fee-shifting provision because a requestor will never “prevail” anyway.

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.

Exception 2 to OPRA’s Personnel Records Exemption

Last week we discussed Exception 1 to OPRA’s personnel records exemption, which permits you to file an OPRA request for a public employee’s “name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record.”  This week, we explore Exception 2.

Exception 2 provides that: “personnel or pension records of any individual shall be accessible when required to be disclosed by another law, when disclosure is essential to the performance of official duties of a person duly authorized by this State or the United States, or when authorized by an individual in interest.”

This Exception has been largely un-litigated and thus the Courts have still not defined the scope of this exception.  In McGee v. Twp. of E. Amwell, 416 N.J. Super. 602, 616, 7 A.3d 785, 793 (App. Div. 2010), the Appellate Division held that emails about an employee were “personnel records” even though they were not filed in a personnel folder and that Exception 2 would permit the employee to request them because she would be an “individual in interest” who could authorize the release.

Regarding the phrase, “personnel or pension records of any individual shall be accessible when required to be disclosed by another law,” we will explore this portion of Exception 2 next week when we explore Exception 3 because the two exceptions work closely together in some instances.

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.

What Personnel Records Can I Obtain Under OPRA?

Personnel records are a category of government records that shine significant light on the workings of government (including misconduct and corruption), but unfortunately our Legislature made most personnel records off limits when it enacted OPRA.  So, what records can you get?

Section 10 of OPRA makes personnel and pension records generally off limits, but it provides three exceptions.  Today, we will discuss the first exception.

The first exception provides that:  “an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record.”

This means that basic requests for a paystubs, year-end payroll reports, lists of employees, etc., must be granted.   But, this exception can actually provide very helpful information where an employee separates from government employment on suspicious grounds.

Too often, government employees engage in some sort of alleged wrongdoing, but work out an agreement with the governing body that they will simply resign on good terms rather than be terminated. The public is often left in the dark about the real reason why the person left, but the personnel record’s first exception can prove helpful.

The public is entitled to know an employee’s “date of separation and reason therefor,” which is language that was incorporated into OPRA from Executive Order No. 11 (1974).  Our Supreme Court has interpreted this very phrase to mean something more than just telling the public that an employee “resigned.”  Rather, “reason therefor” means the REAL reason the employee resigned – i.e., because several employees accused him of discrimination and misuse of government property and a resignation was agreed upon in exchanged for those employees not suing.

In South Jersey Publishing Co. Inc. v. New Jersey Expressway Authority, 124 N.J. 478 (1991), newspapers reported that an executive director of the N.J. Expressway Authority was under investigation for misuse of credit cards.  The Authority held a closed session meeting with the executive director to discuss the results of the investigation and to work out an agreement for him to separate from employment.  Ultimately, the Authority agreed that the executive director would be paid his full salary, pension, and health care through the end of the year and that the agreement would remain confidential.   The newspapers sought access to the agreement and the closed session minutes, but the Authority denied access to both.  The New Jersey Supreme Court ruled that the agreement and closed session minutes were accessible, because the “date of separation and reason therefor” included the results of the investigation into misconduct.  The Court rejected the notion that simply informing the public that the executive director had a “voluntary separation” was sufficient and held that “[w]ithout disclosure of the reasons for [the executive director’s] ‘voluntary separation’ from the Authority, the public cannot intelligently make [an evaluation into the reasonableness of the Authority’s agreement with the executive director.]”

Because the Legislature incorporated the “date of separation and reason therefor” directly from Executive Order No. 11, principles of statutory construction inform that the Legislature thus also intended to incorporate case law interpreting and applying Executive Order No. 11.  Thus, South Jersey Publishing Co. is binding and applicable in an OPRA case.

If an employee or public official in your town “resigns” and it seems like something else was going on, we recommend filing an OPRA request seeking closed session minutes, memorandums of understanding or settlement agreements, and the employee’s “date of separation and reason therefor.”

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.

 

Split Supreme Court Exempts Security Camera Footage

Yesterday, the Supreme Court of New Jersey ruled in a split decision that security camera footage is not accessible under the Open Public Records Act (OPRA).

About the Case

The case is Patricia Gilleran v. Township of Bloomfield.  Ms. Gilleran* requested video footage from a security camera placed on the outside of town hall, just above the mayor’s parking spot.  Bloomfield denied her request, citing two of OPRA’s security-related provisions that exempt:

emergency or security information or procedures for any buildings or facility which, if disclosed, would jeopardize security of the building or facility or persons therein; [and]

security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software

Bloomfield argued vaguely that what the camera records was a secret and that the tape could possibly contain images of police officers, confidential informants, or members of the public reporting crimes at the law enforcement building next door to town hall.

Both the trial court and the Appellate Division ruled in Ms. Gilleran’s favor, finding that the exemptions were not blanket exemptions that rendered all security camera footage inaccessible under OPRA.  The courts also found that Bloomfield had not met its burden of proving that the exemption applied because 1) the camera was in plain view and it was obvious what the camera recorded, 2) the Township Administrator’s certification did not sufficiently explain why releasing the footage would actually cause harm; and 3) no one from Bloomfield had even watched any portion of the tape to state with certainty what it had recorded or whether it contained any confidential images.

Bloomfield appealed to the Supreme Court, who accepted the case.

About Supreme Court’s Split Decision

The Court issued a split decision, with four justices (Justice LeVecchia, Albin, Solomon, and Fernandez-Vina) voting to reverse the lower courts and two justices (Chief Justice Rabner and Justice Timpone) dissenting.  The majority held that security footage was off limits under OPRA because releasing it “would undermine the security purpose of the camera.”   It found that while there is not a blanket exemption for all security-related records (such as the public bidding documents for the purchase of a security system), that there is a blanket exemption for security camera footage.  The Court held that “knowledge of the vulnerabilities of a security system could allow an ill-motivated person to know when and where to plant an explosive device, mount an attack, or learn the movements of persons, placing a public building or persons at risk.”

Ultimately, though the majority ruled that security footage is exempt from access under OPRA, the Court did conclude that there may still be a common law right of access to security camera footage.  It thus remanded the case back to the trial court to determine whether Ms. Gilleran’s interest in the video footage outweighs Bloomfield’s security needs.

In his dissenting opinion, Chief Justice Rabner wrote that had the Legislature intended to create a blanket exemption for all security camera footage, it would have said so.  In the Chief Justice’s opinion, the Township Administrator’s “general language” in his certification did not establish that releasing the footage would jeopardize the safety of persons, which is what the plain language of the exemptions requires.  The dissenting opinion further noted that OPRA provided Bloomfield numerous remedies, such as reviewing the footage and redacting portions of it that caused concern; negotiating with Ms. Gilleran to narrow the amount of footage requested; or charging a service fee to comply with the request.

What This Means For The Public

The Court’s decision means that there is no right to access security camera footage pursuant to OPRA.  While the Court likely found comfort in holding that there is still a mechanism to gain access to the video footage under the common law, unfortunately the Court’s decision will essentially shut down all access to camera footage.

Why? In an OPRA case, an agency who unlawfully denies access to a record faces litigation and will have to pay the fees of any requestor who prevails.  Thus, agencies are more reluctant to deny access to records because it comes with a big financial risk.  As the Supreme Court previously stated, without OPRA’s fee-shifting provision “the ordinary citizen would be waging a quixotic battle against a public entity vested with almost inexhaustible resources.”   With regard to the common law, however, as the Chief Justice noted in his dissenting opinion, it is generally thought that there are no attorney fees awarded in common law cases (though, there are some decisions that have held otherwise).  Agencies thus have no incentive to grant access to records under the common law, because they know that very few people will have the resources to file a lawsuit and that even if the requestor prevails, the agency will likely not be on the hook for the fees.

To put it simply, would an agency voluntarily give up camera footage that incriminates the mayor in response to a common law request?  Doubtful.  What is more likely is that the agency would deny access to the footage and then battle it out with the requestor in court.  Most media agencies cannot afford such expensive legal battles these days, let alone average people. Thus, denials of common law claims records will go un-litigated.

The media is widely reporting on this case, with stories by NJ Advance Media, NorthJersey.comNew Jersey  Herald, Philly.com, the Washington Times, PoliticoTapIntoBloomfield.   The American Civil Liberties Union of New Jersey, the Reporters Committee for Freedom of the Press, and 18 media organizations filed amici briefs.

*Ms. Gilleran was represented by CJ Griffin of Pashman Stein Walder Hayden, who may be contacted for comment at cgriffin@pashmanstein.com .

The Trentonian Requests Access to 9-1-1 Calls

Attorney CJ Griffin is representing The Trentonian in an lawsuit which seeks access to 9-1-1 calls under the Open Public Records Act.  The Trentonian will ask the Honorable Mary C. Jacobson, A.J.S.C., to compel the Township of Hamilton to release 9-1-1 calls relating to an alleged domestic dispute that occurred at the home of a Trenton police officer.  Hamilton claims that the Domestic Violence Prevention Act bars access to the 9-1-1 calls.  The Trentonian argues, however, that the DVPA (NJSA 2C:25-33) only exempts certain records and 9-1-1 calls are not on the list. Additionally, the DVPA exemption is not absolute – the court may still balance the interests of the parties and release the records.

The Trentonian reported on the story and the lawsuit here: http://www.trentonian.com/article/TT/20161101/NEWS/161109977

Township of Old Bridge Must Release Dash Camera Footage

Recently, the Honorable Travis L. Francis, A.J.S.C. ruled that the Township of Old Bridge must release dash camera footage that depicts the Police Director of Carteret engaged in a DWI violation.  Judge Francis ruled that dash camera footage is not a criminal investigatory record and that it did not pertain to a criminal investigation.

Pashman Stein Walder Hayden attorney CJ Griffin represented Mr. Wronko in this matter.

For the full article, click on the link.

Justices Weigh Public’s Right to Know in Fatal Cop Encounters

The following article was posted on Northjersey.com on November 9, 2016 edition. It describes an argument before the New Jersey Supreme Court in one of the most consequential Open Public Records Act cases in State history. Our partner Sam Samaro is lead counsel for North Jersey Media Group and our firm spearheaded the appeal.

In one of the biggest legal battles over government transparency in New Jersey, the state Supreme Court is poised to determine how much information the public receives in the hours and days after police officers use fatal force.

A key question in the case is whether law enforcement agencies must release records that name police officers who use fatal force in the line of duty. Another is whether dashboard-camera videos of such incidents are public or confidential.

The justices heard nearly two hours of oral argument on Wednesday in an appeal filed by North Jersey Media Group, a division of Gannett that publishes The Record. MORE

 

Firm’s OPRA Clients and CJ Griffin Mentioned on Atlantic City Press Article

The Press of Atlantic City published a profile on John Paff, a well-known transparency advocate and a firm client.  Pashman Stein Walder Hayden attorney CJ Griffin is also quoted in the article, as well as one of the firm’s other clients, Harry Scheeler.  This article nicely demonstrates the need for transparency and the critical role that Mr. Paff has played in shaping the scope of OPRA.

Article link