Monthly Archives: May 2018

New Jersey Supreme Court Issues Important Ruling on OPRA’s Privacy Provision

CJ Griffin of Pashman Stein Walder Hayden Submitted Amicus Curiae
Brief on Behalf of Non-profit Organization
in Brennan v. Bergen County Prosecutor’s Office

Hackensack, NJ (May 23, 2018) – The Supreme Court of New Jersey has issued its opinion in Brennan v. Bergen County Prosecutor’s Office, in which Pashman Stein Walder Hayden partner CJ Griffin submitted an amicus curiae brief on behalf of Libertarians for Transparent Government, a non-profit organization. The Court’s decision today provides important guidance to lower courts on how to apply the Open Public Records Act’s privacy provision.

The case involved an OPRA request by an activist seeking the names and addresses of individuals who had purchased sports memorabilia from the Bergen County Prosecutor’s Office (“BCPO”) during a public auction. The auction received considerable news attention.

The trial court ruled that the names and addresses of the successful bidders were disclosable under OPRA, but the Appellate Division reversed. It found that the bidders had a reasonable expectation that their names and addresses would remain confidential. The Supreme Court reversed, finding that “the sale of government property at a public auction is a quintessential public event that calls for transparency.”

Griffin, who also participated in oral argument before the Supreme Court, argued that there is no reasonable expectation that your identity will remain private when you engage in financial transactions with the government and that home addresses are generally not entitled to any level of protection. According to Griffin, this case was just one example of how lower courts have over-applied OPRA’s privacy provision.

“Today’s decision is important not only because the requestor will be able to learn about who purchased government property, but also because the Supreme Court made it abundantly clear that OPRA’s privacy provision should be applied only in the unique cases where there is truly a legitimate privacy interest at stake,” said Griffin.

In 2009, the Supreme Court issued Burnett v. County of Bergen, its first opinion analyzing OPRA’s privacy provision. In Burnett, the Court was faced with a request that sought access to millions of records which contained names, addresses, and social security numbers. The Court held that where a citizen has a reasonable expectation of privacy, lower courts must apply a 7-factor balancing test that allows a requestor to gain access to records only if his or her interest outweighs the privacy interest. According to Griffin, Burnett has been over-applied to instances where there is no reasonable expectation of privacy. Today’s decision should correct that practice; the Court held that courts should apply the Burnett factors “only where a party first presents a colorable claim that public access to records would invade a person’s reasonable expectation of privacy.”

“The lower courts have been applying the Burnett balancing test any time an agency claims privacy as a defense, no matter how frivolous the privacy claim is. This practice has engrafted an interest requirement into OPRA where one should not exist,” said Griffin. “Today’s decision is exactly what we wanted from the Court and will hopefully cause lower courts to restrain from applying a balancing test where one is unnecessary.”

Today’s decision also makes it clear that there is generally no privacy interest in a home address. The lower courts have been split on this issue, with some appellate panels ruling that home addresses are exempt and others ruling that home addresses are accessible. The Government Records Council, an administrative agency tasked with adjudicating denials of access, has generally found that home addresses are exempt.

“Public access to home addresses is important,” said Griffin. “For example, New Jersey has residency requirements for government employees and public officials. If home addresses are redacted from records, the public cannot verify that these residency requirements are actually satisfied.”

Please contact CJ Griffin at cgriffin@pashmanstein.com or 201.270.4930 for further information.

About Pashman Stein Walder Hayden

Pashman Stein Walder Hayden is a full-service mid-size business law firm offering a wide range of corporate and personal legal services. Headquartered in Hackensack, New Jersey with an office in Red Bank, New Jersey, the firm serves a diverse client base including regional Fortune 500 companies, emerging growth entities, and individuals, as well as out-of-state corporate counsel, law firms and individuals with interests in the New York metropolitan region. For more information, please visit www.pashmanstein.com. The firm also publishes an OPRA blog at www.njopra.com.

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Appellate Division Rules that OPRA is not Limited to NJ Citizens

Ruling protects the right of out-of-state media to utilize OPRA

Pashman Stein Walder Hayden partner CJ Griffin secured an important victory today in a consolidated Open Public Records Act (OPRA) case. The Appellate Division ruled that OPRA can be used by “any person” and is not limited only to New Jersey citizens. No other appellate court has previously addressed this issue. The Appellate Division’s decision can be viewed here.

The case, which has been approved for publication, is captioned Harry Scheeler v. Atlantic County Municipal Joint Insurance Fund. The Appellate Division affirmed a decision by the Honorable Ronald E. Bookbinder, A.J.S.C., who held that OPRA was not limited only to citizens because nearly a dozen provisions of OPRA state that “any person” can request government records and “any person” can file a lawsuit to challenge an agency’s denial of access.

At the same time, the Appellate Division reversed the lower court in the two other appeals that were part of the consolidated decision: Scheeler v. City of Cape May and Lawyers’ Committee for Civil Rights Under the Law v. Atlantic City Board of Education. In those cases, an Atlantic County trial court judge ruled that despite OPRA’s repeated references to “any person,” only New Jersey citizens can utilize OPRA because OPRA’s introductory language states that “government records shall be readily accessible for inspection, copying, or examination by the citizens of this State.”

Had the Appellate Division ruled differently, out-of-state news agencies would have been precluded from filing OPRA requests in New Jersey. Even out-of-state persons who own summer homes or rental homes in New Jersey would have been precluded from filing OPRA requests, even though they clearly have an interest in doing so.

“The Appellate Division’s decision is a significant victory because allowing out-of-state requestors to utilize OPRA, whether they are individual persons or media companies, advances transparency and benefits the citizens of our State,” said Griffin. “Most of my non-media clients, including Mr. Scheeler, routinely distribute the records they obtain from public agencies to the media or otherwise publish them online so that the public can be aware of what their government is doing.”

Griffin has litigated several cases on this issue and had convinced a total of four trial court judges that OPRA did not contain a citizenship requirement. In one case, Carter v. Borough of Paramus, the OPRA requestor was a New Jersey citizen but the agency insisted that he had to provide his home address and driver’s license in order to prove his citizenship. When the requestor cited his privacy and refused to do so, the agency denied his request. Griffin took the matter to Superior Court and won.

“A citizenship requirement would put endless obstacles in the way of gaining access to public records, even for citizens,” said Griffin. “This is the only decision that makes sense and that fosters transparency.”

Griffin represented Mr. Scheeler in both cases bearing his name. PSWH Associate Suzanne M. Bradley participated in the legal briefing. The American Civil Liberties Union of New Jersey represented the Lawyers’ Committee in the third matter.

Please contact CJ Griffin at cgriffin@pashmanstein.com or 201.270.4930 for further information.

Are Survey Results Subject to OPRA?

Government agencies often distribute surveys to the public regarding various issues of public concern. Are the completed surveys subject to public access under OPRA? We think so and a court is being asked to decide.

Recently, we learned of an OPRA lawsuit filed by a requestor who seeks the results of a survey that was sent to residents of the Borough of Saddle River. The survey, which was sent by a local veterinarian who serves on the Borough’s Non-Lethal Deer Population Control Committee, asked residents whether they would allow access to their property to carry out a non-lethal deer management plan. When the requestor filed an OPRA request for the survey results, Saddle River denied the request, claiming that the results were ““inter-agency or intra-agency advisory, consultative or deliberative material.”  We think the Saddle River got it wrong.

The deliberative process privilege applies only to inter-agency and intra-agency communications. The privilege is designed to keep internal policy-making documents confidential. Only internal documents (or documents between one government agency and another) that weigh one policy option over another; that make recommendations; or that offer opinions and advice fall within the privilege. Surveys that are completed by the general public are simply not “inter-agency” or “intra-agency” documents and thus the privilege cannot apply.

There may be times when OPRA’s privacy provision (or some other exemption) may apply to allow some information within a survey to be redacted, however. For example, we litigated Flom v. Allendale Board of Education, Docket No. BER-L-9208-15 (Law Div. Jan 7, 2016), where the requestor sought access to surveys that parents completed regarding their level of satisfaction with the district’s special education program. While the survey was intended to be completed anonymously, some parents put personal identifying information about their children on the forms. The court granted access to the survey results, but permitted the district to redact any information from the survey forms that would identify any student since students are entitled to heightened privacy.

Please contact CJ Griffin at cgriffin@pashmanstein.com or 201.270.4930 for further information.