Category Archives: OPRA Cases

CJ Griffin Interviewed for Marketplace Reports on NPR

CJ Griffin, a member of Pashman Stein Walder Hayden’s Media Law Group, was interviewed by Marketplace regarding a prior OPRA lawsuit she brought against the City of Newark seeking its Amazon HQ2 bid.

The public radio program, “What’s in Those Amazon HQ2 Bids? It’s Not Entirely Clear” by Renata Sago and Leila Goldstein, aired on Tuesday, November 6th.

“There’s hundreds of millions or billions of dollars, of tax dollars, at stake,” said CJ Griffin, a partner at Pashman Stein Walder Hayden, who argued the case. “That’s taxpayer money. When you give tax breaks, that impacts other people, so the public has a right to know.”

To listen to the story, click here

For more background on the lawsuit, click here.

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Supreme Court Rules Dash Cams Pertaining to Criminal Investigations Are Not Subject to OPRA

This week, the New Jersey Supreme Court issued a split decision (4-3) in Paff v. Ocean County Prosecutor’s Office and once again ruled that dash camera videos that pertain to criminal investigations are not subject to the Open Public Records Act (OPRA).

While the decision is a serious disappointment to transparency advocates, it does not actually change the status quo. Last year, in North Jersey Media Group Inc. v. Township of Lyndhurst, a unanimous Supreme Court ruled that the dash cam video of a police-involved deadly shooting was not subject to OPRA because there was no Attorney General (AG) guideline or other law (statute, regulation, etc.) that required it to be made or maintained.[1]

The Court made it clear in Lyndhurst, however, that dash camera videos of police shootings should generally be released under the common law right of access within a few days of an incident. The AG subsequently issued a directive requiring their release within 20 days.

In Lyndhurst, the Court specifically said that it was not answering the question presented by Paff (which was pending on the Court’s docket): whether a directive by a local chief of police could satisfy the “required by law” standard, just as an AG directive does. Thus, the Paff case became a new opportunity for transparency advocates to convince the Court that dash camera videos are accessible under OPRA.

Unfortunately, the Court rejected that argument and thus the law remains the same: dash camera videos are only available under the common law right of access. But, it was a very close decision (4-3). Justice Albin wrote a biting dissent, which Justice LaVecchia and Justice Timpone joined, concluding that “[i]n the wake of today’s majority opinion, the operations of our government will be less transparent and our citizenry less informed, which may lead to greater misunderstanding and more distrust between the public and the police.”

We think Justice Albin’s assessment is right and we hope that the Legislature or the Attorney General will accept his invitation for action:

In accordance with Lyndhurst, the Attorney General or the Legislature can undo the damage caused by today’s decision. The Attorney General can adopt a statewide policy that addresses whether and how police video recordings are made and maintained, as he did with Use of Force Reports.

The public — particularly marginalized communities — will have greater trust in the police when law enforcement activities are transparent.

The public pays for the dash cameras. Why can’t we see the videos?

What Videos are Still Available?

  • Dash Cam Videos Relating to Crimes: These are probably not available under OPRA in most circumstances, but generally should be available under the common law per Lyndhurst.
  • Dash Cam Videos of Police Using Deadly Force: Same. Also, AG Directive 2018-1 requires disclosure under the common law within 20 days if the video depicts a deadly shooting or an incident where police use force that results in “serious bodily injury.”
  • Dash Cam Videos of a DWI: A DWI is not a crime, so these should generally be available under OPRA.
  • Dash Cam Videos of Traffic Stops: These should generally be available, unless the traffic stop turns criminal.
  • Body Camera Videos: We think these should be subject to OPRA because an AG Guideline requires them to be maintained. At the same time, the AG Guideline attempts to exempt body cam videos relating to criminal investigations. We have this issue pending on appeal.
  • Security Camera Videos: The Supreme Court ruled in 2016 that security camera videos are not subject to OPRA, but access should be granted under the common law where a person states a sufficient interest in the video.

PSWH partner CJ Griffin submitted a brief on behalf of several amicus curiae and participated in the nearly three-hour oral argument. Griffin has litigated dozens of police records cases, including Lyndhurst.  Contact CJ at cgriffin@pashmanstein.com


[1] A criminal investigatory record is a record that is 1) held by a law enforcement agency; 2) pertain to any criminal investigation and 3) are “not required by law to be made, maintained, or kept on file.”

Amazon suit continues to get coverage

The New York Times has published an article about the serious lack of transparency regarding the proposals that cities have submitted bids to Amazon for their HQ2 Headquarters. Despite the fact that the taxpayers of the winning city will be on the hook for billions of dollars in incentives, too many cities are still keeping the public in the dark about what Amazon is being offered.

The article references our lawsuit, which secured access to the City of Newark’s bid, which we published.

Update: Court Orders Disclosure of Facebook “Blocked Users” Lists

We previously wrote about an OPRA lawsuit we filed on behalf of citizen seeking a list of users that various public officials from Glen Rock have blocked from their official Facebook accounts. Today we are happy to report that the suit was successful.

In Larkin v. Glen Rock, the Honorable Bonnie J. Mizdol, A.J.S.C., ruled that the lists of blocked users from each of the Facebook pages in questions were “government records” that are subject to access under OPRA. In her 23-page opinion, the judge noted that there is no “one-size-fit-all” approach to determine whether a particular Facebook account falls within OPRA’s scope. Rather, she applied a “fact-sensitive review” of the Facebook pages at issue to conclude that they were indeed subject to OPRA.  Among other things, the judge noted that:

  • The mayor and each council member’s Facebook pages “clearly identified them as elected members of the Glen Rock governing body”
  • Each page was “separate and distinct from their personal, friends and family Facebook pages”
  • Each page “was used for the sole purpose of discussing matters directly pending before the Mayor and Council,” including topics such as “ordinances, resolutions, budgets, and committees on which the Mayor or council member serves.”
  • The posts on each page “shared ideas, answered questions and interacted with constituents and the public at large about the Borough’s official business”

The court also rejected Glen Rock’s argument that those who were blocked by the public officials had a right to privacy.

 

Court Issues Jail Death Records Opinion

On June 4, 2018, the Appellate Division issued an unpublished OPRA opinion titled Benedetto v Russo and Union County. While the opinion is not binding on lower courts because it is unpublished, we think it is helpful in several ways.

First, the case involves very important records: incident reports regarding suicide and suspicious deaths within a County Correctional Facility. Given the widespread coverage regarding several deaths in the Hudson County Jail recently, it is important that the public has access to information about these deaths and the conditions inside the jail.

In this case, Union County argued that the incident reports regarding jail deaths could not be disclosed because N.J.A.C. 10A:31-6.10(a)(4) exempts “[a]ny information relating to medical, psychiatric or psychological history, diagnosis, treatment or evaluation.”  Additionally, Union County argued that records relating to drug overdoses could not be disclosed pursuant to N.J.A.C. 10A:31-6.10(a)(3), which exempts a “record, which consists of any alcohol, drug or other substance abuse information, testing, assessment, evaluation, report, summary, history, recommendation or treatment.” Thus, Union County argued the incident reports were medical records and exempt pursuant to both of those regulations.

The trial court ruled that these exemptions did not apply. The Appellate Division affirmed, agreeing with the trial court that the requestor did not seek “inmate medical records,” but rather sought “incident reports.” This is an important ruling because public agencies frequently try to categorize a record as something it is not.

The second reason this case is important is because it reinforces the rule that public agencies cannot meet their burden of proving that a record is exempt simply by making factual assertions in legal briefs. Instead, public agencies must produce affidavits, certifications, or other “legally competent evidence” if it wishes to cite facts not in the record. Unsworn assertions by attorneys in a brief are simply not evidential.

Too often in an OPRA case, a public agency will produce no evidence whatsoever and will ask the trial court to accept what was argued in a brief or to make a ruling based on assumptions. This case confirmed that is not acceptable.

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

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.

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.

Newark Releases Its Amazon HQ2 Proposal

We previously blogged about an OPRA lawsuit we filed on behalf of an activist seeking access to Newark’s Amazon HQ2 proposal. We are happy to announce that Newark has now released its proposal to our client.

Newark’s proposal is titled, “Yes, Newark.” As evidenced by the privilege log it attached to the proposal, Newark redacted approximately 6 pages from its 200+ page proposal. These pages contained the financial incentives that Newark is offering to Amazon. All other information has been disclosed. We consider this a significant transparency victory.

“I strongly believe in open government. The people of New Jersey, especially Newark residents, deserve to know what their government is doing,” said Plaintiff Steven Wronko, a transparency advocate.

“Other finalist cities put their proposals online as part of their PR campaigns to win Amazon over. The citizens of those other finalist cities got to be part of the process and see how their cities were being promoted. That builds pride and buy-in from residents. The people of Newark were completely excluded, but we are happy that they can now be part of the process,” said CJ Griffin, who represented Mr. Wronko.

Among other things, the proposal highlights Newark’s diversity, technology infrastructure, and transportation systems. It includes more than 50 pages of letters of recommendations and details the proposed locations within the city for the headquarters:Locations

 

The full proposal may be downloaded here:

Proposal Part 1
Proposal Part 2
Proposal Part 3

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

Video

Lawsuit for Facebook “Blocked” Lists

It’s a hot button topic: are government officials creating government records that are subject to OPRA when they utilize social media? A judge will soon decide.

CJ Griffin was recently interviewed by Fios 1 News television regarding a lawsuit she filed on behalf of a requestor seeking a list of users that various government officials have blocked from their official Facebook accounts.

The Record also covered the lawsuit.

We think the answer is obvious: if a government official conducts official government business on a social media account (such as updating constituents on official matters), than those accounts are government records and are subject to access under OPRA.

A “block” list is available on both Twitter and Faceook. Sample request language:

“Pursuant to OPRA and the common law, I seek the list of blocked users from the Facebook or Twitter account of _________. The URL of that account is _______________.”

An Appellate Division Win

Today, PSWH secured an appellate victory for two long-term firm clients, Richard Rivera and Collene Wronko.

The case involved OPRA requests for records from the Middlesex County Prosecutor’s Office (MCPO) which related to an incident where police officers shot and killed a man outside his home in Old Bridge. Both Mr. Rivera and Ms. Wronko sought access to the 9-1-1 call of the incident, as well as other police records, such as CAD reports and Standard Operating Procedures. Their requests were denied.

After lawsuits were filed, MCPO eventually released a redacted version of the 9-1-1 call. The judge upheld those redactions, ruling that those portions of the call raised serious privacy concerns. The judge also ordered MCPO to release CAD reports and Standard Operating Procedures, but permitted redactions to any exempt material. Despite the fact that both Ms. Wronko and Mr. Rivera got exactly the relief they were seeking in their lawsuits (lawfully redacted records), MCPO insisted that they were not entitled to full reimbursement of their fees.  Judge Francis disagreed and found that both requestors were fully prevailing parties and awarded approximately $22,000 in fees and costs.

MCPO appealed, again arguing that the requestors were only “partially” prevailing parties since they received only redacted records. The Appellate Division affirmed Judge Francis’ decision, describing MCPO’s arguments as “factually inaccurate and lack[ing] merit.”

The MCPO lost two other appeals involving media companies who had requested the same 9-1-1 call, bringing the total cost for denying access to the 9-1-1 call to over $130,000.  Because MCPO lost its appeals, the requestors will be entitled to additional fees for the appellate work.

A copy of the decision may be found here.

Media Coverage:

Middlesex County Prosecutor’s Office to Pay $20k in OPRA Case,” MyCentralNewJersey.com (Mar. 20, 2018).

Middlesex Prosecutor Again Loses on OPRA Fees Issue,” N.J. Law Journal (Mar. 20, 2018).