Category Archives: OPRA Cases

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.

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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 .

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

 

The Status of Access to Police Records:  O’Shea, NJMG v. Lyndhurst, and Paff v. OCPO

In enacting OPRA, the Legislature created two exemptions for police records.  The first exemption is the “ongoing investigation exemption.” N.J.S.A. 47:1A-3(a).  For that exemption to apply, an investigation must be ongoing and the police agency must prove that release of the records would be “inimical to the public interest.”   Even if the police do prove that releasing the records while the investigation is ongoing would be harmful, ultimately the records must be released after the investigation concludes.

OPRA’s other exemption, the “criminal investigatory records” (CIR) exemption, is much more stringent.  If a record constitutes a CIR, then it is forever exempt from access.  The statute defines a CIR as one that is 1) “not required by law to be made, maintained, or kept on file” and 2) which “pertains to any criminal investigation or related civil enforcement proceeding.”  N.J.S.A. 47:1A-1.1.   Both elements must be met in order to shield the record from the public.

Because the very first line of OPRA instructs that “any limitations on the right of access . . . shall be construed in favor of the public’s right of access,” courts have always applied the CIR exemption narrowly.  Accordingly, since 2009, the courts have held that the Attorney General’s Guidelines are “laws” that negate the “not required by law to be made, maintained, or kept on file” element of the CIR exemption.  Thus, records such as Use of Force Reports (UFRs) have been publicly accessible since the AG’s Use of Force Policy requires every officer in the state to complete a UFR after he uses any level of force against a citizen.  See O’Shea v. Twp. of W. Milford, 410 N.J. Super. 371 (App. Div. 2009).

That all changed in 2015, when another panel of the Appellate Division disagreed with O’Shea and held that only duly promulgated regulations, executive orders, statutes, or judicial decisions constitute “laws” for purposes of the CIR exemption.  See North Jersey Media Group Inc. v. Twp. of Lyndhurst, 441 N.J. Super. 70 (App. Div.), leave to appeal granted, 223 N.J. 553 (2015). Thus, the court held that even if an AG Guideline requires every officer in the state to make a certain record, that record still is not accessible to the public because it was not required to be made by a “law.”  It also applied the second element of the CIR exemption so broadly that if a record even tangentially relates to a criminal defendant, the court held that it “pertained to any criminal investigation.”  The Appellate Division’s decision in NJMG v. Lyndhurst has been detrimental to transparency because it has rendered nearly every police record off limits!

Since NJMG v. Lyndhurst was decided, agencies have had justification to deny access to UFRs and other police records.  Technically, though, trial courts are not bound by NJMG v. Lyndhurst and could instead apply O’Shea.  This is because when there are conflicting Appellate Division opinions, a trial court is free to choose which decision to apply.  Last week, a third published Appellate Division decision involving the CIR was issued, giving the trial courts another decision to choose from.  See Paff v. Ocean County Prosecutor’s Office, __ N.J. __ (2016).

The Paff court expressly disagreed with NJMG v. Lyndhurst.  It instead held that not only are AG Guidelines “laws” that satisfy the “required by law to be made, maintained or kept on file” standard, but so are local policies and directives from a Chief of Police.  The Paff court also disagreed with NJMG v. Lyndhurst’s holding that “an officer’s decision to activate a [dash cam] to document a traffic stop or pursuit of a suspected criminal violation of the law may make the recording ‘pertain to a criminal investigation, albeit in its earliest stages.’”  Thus, per Paff, dash cam footage is accessible and UFRs would be accessible.

Because there was a dissent in Paff, the case automatically goes to the Supreme Court.  The Supreme Court also accepted the plaintiff’s appeal in NJMG v. Lyndhurst.  While trial courts are free to apply either O’Shea/Paff or NJMG v. Lyndhurst at the present moment, ultimately the Supreme Court will issue decisions which will be binding upon every court in the state.   Those landmark decisions will define the scope of access to police records and determine how transparent the police must be.

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

Pashman Stein’s OPRA Cases Make News

Several of Pashman Stein’s OPRA cases have been covered extensively by the press lately. Here is a rundown of the coverage.

McClimate v. Cumberland County

The Daily Journal has covered McClimate v. Cumberland County, a case where Pashman Stein has filed a suit on behalf of a retired county employee who seeks records pertaining to her insurance coverage.  Despite repeated requests that the county provide the actual cost sheet that Horizon Blue Cross gave the county, the county instead insisted on providing only a summary chart that it created.  Ms. McClimate seeks the actual cost breakdown from Horizon so that she can determine whether the County is charging her the proper premium.

Paff v. Bayonne

The Jersey Journal recently covered Paff v. City of Bayonne, a case where Pashman Stein represented open government proponent John Paff in a quest for records pertaining to two settlement agreements.  Mr. Paff sought the agreements, or, in the event the agreements were not finalized, correspondence related to the settlement.  Bayonne denied the request, saying any such correspondence would be exempt pursuant to the attorney-client privilege.  After Mr. Paff filed his suit and argued that correspondence between adversaries is not privileged, Bayonne admitted that it should have stated that no such correspondence even existed.  Bayonne settled the case by admitting its error and paying Mr. Paff’s attorneys’ fees.

Gilleran v. Township of Bloomfield

Patricia Gilleran’s security camera case continues to get news coverage.  Pashman Stein secured a victory for Ms. Gilleran in the trial court and in the Appellate Division, where both courts held that Ms. Gilleran was entitled to security footage from a camera outside Bloomfield’s municipal building.  The case is now pending in the Supreme Court.  Debbie Gallant wrote an article for the Society of Professional Journalists, detailing Ms. Gilleran’s case and the quest to obtain security camera footage from Bloomfield.   Bloomfield Life, Baristanet, and Essex News Daily have also recently covered Ms. Gilleran’s case.

Paff v. Moorestown

Numerous newspapers, including the Philadelphia Inquirer, are covering John Paff’s OPRA lawsuit against the Moorestown Township.  Mr. Paff filed suit to obtain minutes from an October 2012 meeting of the Moorestown Ethical Standards Board.  After Mr. Paff filed suit and argued that public access to minutes cannot be delayed for more than three years and that the agency should release the unapproved minutes, the Board rushed to convene a meeting to approve the 2012 minutes and then released them to Mr. Paff.

DeSanctis v. Borough of Belmar

More Monmouth Musings is covering a lawsuit Pashman Stein filed on behalf of Joy DeSanctis, who is seeking e-mail correspondence between Belmar officials and FEMA regarding Superstorm Sandy funds and the building of the pavilions.  Belmar refused to search for e-mail correspondence, insisting that DeSanctis needed to tell her the exact names of the Belmar officials or FEMA officials who were communicating with each other.  Ms. DeSanctis argues that she has no way of knowing such information, but that Belmar certainly knows and that her request is valid pursuant to Burke v. Brandes, 429 N.J. Super. 169 (2012).

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

Transparency of Police Conduct Consistent with Public’s Right to Know

The following article was authored by Pashman Stein Partner Sam Samaro and appeared in the New Jersey Law Journal on October 29, 2015.

In March of 1991, a Los Angeles resident by the name of George Holliday noticed some commotion outside his apartment. He grabbed a camcorder, went out onto his balcony and shot the now iconic footage of Rodney King being beaten by the police. The resulting prosecution of the officers involved occurred because, and only because, the incident happened to take place within eyeshot of a citizen with a video camera. At the time, videotaped evidence of police misconduct was extremely rare.

Today, it is not so rare. It has been estimated that as many as two-thirds of all American adults own smart phones. That means that most people walking the streets these days are carrying high-quality video equipment in their pockets or purses, and ever more frequently they are using those devices to record what they see in their daily lives, including altercations involving the police. On top of that, state and local governments have come under increasing pressure to add camera equipment to patrol cars and even patrol officer uniforms. As a consequence, police departments in many communities are now required to make their own video recordings of traffic stops, arrests and other interactions with citizens. We can anticipate a time when most things police do in public will be recorded by someone.

It is fair to say that law enforcement agencies are less than enthusiastic about this development. They argue, not without merit, that the videos only tell part of the story and often contain important evidence which, if released too soon, could compromise ongoing criminal investigations of suspects or internal affairs investigations of officers. They worry that the repeated showing of such videos in the media and their availability online creates unjustified cynicism about the police and may actually subject officers to retribution attacks.

For the rest of the article, please click here.

GRC Rules that Agencies Must Accept Electronic Requests

While overwhelmingly most agencies accept emailed or faxed requests or have an online portal to submit OPRA requests, there are a handful of agencies that do not. The Government Records Council (GRC) recently ruled that the refusal to accept at least one form of electronically submitted requests violates OPRA.

On September 29, 2015, the GRC ruled in Russo v. City of East Orange (Essex), GRC Complaint No. 2014-430, that “the City’s policy of banning submission of OPRA requests electronically represents an unreasonable obstacle on access.” In its decision, the GRC recounted East Orange’s history regarding the issue of request submission policies.  In 2009, Paff v. City of E. Orange, 407 N.J. Super. 221, 228 (App. Div. 2009), the Appellate Division ruled that East Orange was not compelled by the statute to accept faxed OPRA requests since it did not have a designated fax line. However, it also held that an agency cannot “impose an unreasonable obstacle to the transmission of a request for a governmental record,” such as only accepting hand-delivered requests.  Since at that time East Orange also accepted “electronically submitted” OPRA requests, the Appellate Division held that the refusal to accept faxed requests was not unreasonable.

Now, however, East Orange only accepts hand-delivered or mailed OPRA requests. The GRC noted that not only did East Orange fail to notify requestors that it did not accept emailed OPRA requests. It also held that “[a]llowing for at least one form of electronic transmission method is reasonable in a time when citizens and public agencies are increasingly relying on technology to perform their daily duties. Additionally,  allowing for  at  least  one  electronic  method  will  provide  an  efficient  and expedient method for requestors to obtain records.”

Pashman Stein filed an action in July 2015 on behalf of Patricia Gilleran against East Orange, seeking an order compelling the City to respond to Ms. Gilleran’s e-mailed OPRA request. Oral argument on that case will be heard on October 28, 2015.

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

North Jersey Media Group v. Township of Lyndhurst Appeal Drawing National Support From Media

Numerous media entities have joined in an amicus brief filed by the Reporters Committee for Freedom of the Press, New Jersey Press Association, and ACLU of New Jersey in support of North Jersey Media Group’s Motion for Leave to Appeal to the Supreme Court in the case North Jersey Media Group v. Twp. of Lyndhurst, 441 N.J. Super. 70, 112-13 (App. Div. 2015).  Pashman Stein represents Plaintiff in this case, which has drawn national attention due to the Appellate Division’s holding which significantly limited the public’s right of access to police records.    A copy of the amicus brief can be found here:

http://asne.org/blog_home.asp?Display=1990

Government Records Council in Violation of OPMA?

We have blogged before about a public agency’s requirement under the Open Public Meetings Act (OPMA) to make its meeting minutes “promptly” available to the public.  Our courts have held that minutes must be made available within two weeks after a public meeting or, at a minimum, at least 48-hours prior to the next meeting.  Those who regularly file requests for meeting minutes, however, are well aware that overwhelmingly public agencies fail to meet this timeline.  Indeed, many, if not most, public agencies are months behind on releasing minutes to the public.

One such agency is the Government Records Council (GRC).  The GRC was created by the Legislature to assist in the administration of the Open Public Records Act (OPRA).  The GRC offers advice to records custodians and requestors, mediates and adjudicates denial of access complaints, and provides training on OPRA to custodians and the public.  You would think, then, that they would be a stellar example to other agencies on how to comply with New Jersey’s transparency laws.  Think again.

Our client, Harry Scheeler, just filed this complaint with the Mercer County Prosecutor’s Office asking the prosecutor to investigate and find the GRC in violation of OPMA.  Mr. Scheeler demonstrates how the GRC is often nearly 6 months behind in making their minutes available to the public.  Their frequent excuse is that they are unable to have a quorum at their meetings to formally approve the minutes and thus the minutes are “drafts” that are exempt under OPRA.  Case law, however, is clearly that “promptly available” means just that and being months behind on approving minutes is unacceptable.

If the GRC is having trouble forming a quorum to hold its meetings (which also causes significant delay in the adjudication of OPRA complaints), perhaps the Governor should remove the members for “good cause.”  These absent members are clearly causing the GRC to fall short of its statutory obligations under OPMA.

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

Sunshine Week: Jennifer A. Borg, Esq.

We close Sunshine Week by featuring Jennifer A. Borg, Esq.

Ms. Borg is General Counsel and Vice President of North Jersey Media Group, publisher of The Record.  She is a recognized authority in First Amendment and open governance matters, particularly as they affect newspapers, and has recently served as Chair of the New Jersey Press Association.  She also has litigated numerous OPRA lawsuits with successful results.  Ms. Borg was featured in the ABA Journal (July 2014) for her expertise in OPRA and public records access issues.  Pashman Stein regularly serves as co-counsel with North Jersey Media Group on complex OPRA cases, several of which are presently on appeal before the Appellate Division.

Interview with Jennifer A. Borg, Esq:

  1. How many OPRA requests do North Jersey Media Group’s reporters submit each month? How many result in violations and/or litigation?

I have no way of knowing exactly how many requests are filed for any given time-period.  North Jersey Media Group has over 100 reporters and very few requests actually make it to my desk.  Usually, I am only contacted when a request is denied, although I do encourage reporters to allow me to help them draft the request.  Requests that are too broad or unclear are often denied so I like to work with reporters to make sure the  request is valid and specific.

I would estimate that we file 6-12 OPRA lawsuits a year.

  1. What are the most common OPRA violations that you see?

The most common violations are not providing a privilege log or Vaughn index with the denial.  Too often, an agency will just deny a request outright without listing the specific documents being withheld or explaining the reasons why each document is being withheld.

  1. Do you think OPRA and OPMA are working well?

I think OPRA is an improvement over the former Right to Know Law.  But, I agree with Senator Weinberg that amendments are greatly needed.  OPRA has been in effect for over a dozen years so we have had time to evaluate where it can be strengthened.  I have less experience with the Open Public Meetings Act (“OPMA”), but I find that it too is missing important language clarifying its terms.  For instance, agencies need to be more specific when giving reasons for going into closed session. “Personnel” and “litigation” do not suffice.    Because OPMA does not provide for attorneys’ fees to the prevailing party, many people don’t take significant violations to court. It’s simply too expensive for most people to pay a lawyer to litigate these claims.

  1. If you could persuade the Legislature to take steps to improve government transparency, what would be your top suggestions?

OPMA needs to provide for attorneys’ fees so that members of the public have lawyers willing to take their cases to court.  Without attorneys’ fees, the practical effect is that agencies can violate the statute without consequence.  There are many changes I would like to see made to OPRA.  For starters, I think the statute should make it clear that courts, and not just the GRC, can impose penalties against those who knowingly and willfully violate the statute and that requestors be allowed limited discovery to prove that an official engaged in such conduct.   It makes no sense that a public official can flagrantly violate the law and not be held accountable for his or her misconduct.  Custodians are required to perform an adequate search for records but too often judges do not allow a requestor limited discovery into whether the custodian’s search was proper and adequate.     Without looking under the hood, how can we hold officials accountable when they knowingly violate the law?   It is crucial for the public to be able to verify that a custodian or other official properly performed his or her job duties when responding to an OPRA request.

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