Tag Archives: freedom of information

Third Circuit Issues Important OPRA Decision on Legal Fees

According to N.J.S.A. 47:1A-6, a records requestor who prevails in any proceeding shall be entitled to an award of reasonable attorneys’ fees. We have written about OPRA’s fee-shifting provision before, noting that without the fee-shift most requestors would not have the funds to challenge denials of access. As a result, the state would be far less transparent.

On August 14, 2019, the United States Court of Appeals for the Third Circuit issued an important published opinion relating to OPRA’s mandatory fee-shifting provision.

The case, titled Golden v. New Jersey Institute for Technology, involved OPRA requests filed by Pulitzer Prize-winning journalist Daniel Golden, who was seeking records from NJIT to use as research for his book, “Spy Schools: How the CIA, FBI, and Foreign Intelligence Secretly Exploit America’s Universities.” Many of the responsive records in NJIT’s files originated from the FBI and were purportedly subject to prohibitions on public dissemination.

The records custodian reached out to the FBI to determine how to respond to the request and the FBI directed NJIT to withhold most of the records “[i]n no uncertain terms.” NJIT thus denied the OPRA requests by claiming the records were exempt.  Golden sued.

After the lawsuit was filed and removed to federal court, the FBI reviewed the previously withheld records and NJIT produced thousands of pages of documents that it had formerly deemed to be exempt. Golden moved for attorney’s fees, arguing that he was a prevailing party because his lawsuit was the “catalyst” for NJIT’s release of records that were not exempt. The District Court denied the fee motion and was “persuaded by NJIT’s position that it had acted reasonably in following the FBI’s direction.”

The Third Circuit disagreed and all but stated, “If a public agency permits a third party–even if it’s the FBI–to dictate its OPRA response, then that public agency will be on the hook for attorneys’ fees if it turns out that the denial of access was unlawful.” The court made it clear that it is the custodian who has the obligation “to parse the requested records, decide whether exemptions appl[y], and withhold documents pursuant to those exemptions” and that obligation cannot be outsourced to a third party outside the agency.

Importantly, the Third Circuit flatly rejected the argument that OPRA’s fee-shifting provision contains any “reasonableness” requirement. State courts have reached the same conclusion based on the plain language of OPRA, but public agencies still make this argument to trial courts.

This decision is important because there are often times where issues of first impression are litigated and the agency was operating under good faith when it denied a request, but nonetheless was wrong as a matter of law. In such situations, the OPRA requestor is still entitled to an award of attorneys’ fees. Indeed, OPRA contains a mandatory fee-shifting provision so that requestors can find competent counsel to litigate those types of cases.

Judge rules North Arlington improperly imposed service charge for Facebook records

Last week, Bergen County Assignment Judge Bonnie J. Mizdol issued an opinion finding that the Borough of North Arlington unlawfully imposed a special service charge upon a records requestor who sought records from the Borough’s Facebook pages.

The OPRA request at issue in Wronko v. North Arlington sought the list of individuals who had been banned from the Borough’s Facebook page, as well as a list of any words that had been censored and the list of page administrators. In response, the Borough insisted it needed to use an outside IT consultant to capture the screenshots necessary to fulfill the request, which would cost $200 for 2 hours of time.

OPRA permits a special service charge only in limited circumstances. Specifically, N.J.S.A. 47:1A-5(d) provides that:

If a request is for a record: . . . requiring a substantial amount of manipulation or programming of information technology, the agency may charge, in addition to the actual cost of duplication, a special charge that shall be reasonable and shall be based on the cost for any extensive use of information technology, or for the labor cost of personnel providing the service, that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both.

Otherwise, “electronic records and non-printed materials shall be provided free of charge.” N.J.S.A. 47:1A-5(b)(1).

After hearing expert testimony from both parties, Judge Mizdol concluded “that production of the requested documents does not require a substantial amount of manipulation of information technology.”  The court found that capturing screenshots of the Facebook pages that contained the list of banned users and censored words “did not require any expertise in the field of information technology” and that any person with a “basic level of computer skills” would be able to fulfill the request by utilizing Facebook’s “Help” pages or a “simple Google search for ‘how to take a screenshot.'”

Importantly, the Court noted that it is imperative that agencies be able to fulfill modern day OPRA requests:

OPRA requests increasingly involve information technology in this digital age. Those hired to serve as an OPRA Records Custodian, thus, must have the requisite skills to reply to requests for government records located on such digital platforms. If a custodian does not have such skills, the municipality has the ability to rely on information technology experts or hire third party help. However, shifting costs related to same [to the requestor] requires the presence of a substantial amount of manipulation on information technology.

Unfortunately, the imposition of special service charges seems to be on the uptick. Many requestors may simply walk away from a request if the agency seeks to impose a significant fee, but it is possible to challenge the fees in court. In this case, Judge Mizdol ordered the agency to release the records without any fee and to pay the requestor’s legal fees.

 

Lawsuit Challenges Essex County Prosecutor’s Refusal to Disclose Police Videos and Name of Newark Officer Who Fatally Shot Fleeing Motorist


Last week, CJ Griffin filed an OPRA lawsuit on behalf of Richard Rivera against the Essex County Prosecutor’s Office (ECPO) relating to its refusal to disclose the name of a Newark police officer who shot at a fleeing vehicle during a pursuit in January 2019, killing the driver and injuring the passenger. The lawsuit also seeks access to footage from police body-worn cameras and dash cameras.

ECPO denied the request because it is “concerned” that the officer may refuse to testify before the grand jury if his or her name is publicly disclosed. Mr. Rivera’s lawsuit argues that this is not a lawful basis for denying access to the information and videos and that transparency is important when police-involved shootings occur.

In 2017, we won an appeal in the New Jersey Supreme Court on a similar issue in North Jersey Media Group v. Township of Lyndhurst, 229 N.J. 541 (2017). In Lyndhurst, the Supreme Court ruled that the public was entitled to learn the identities of the police officers involved in fatal shootings and see videos of those incidents “shortly after the incident,” after investigators “have interviewed the principal witnesses who observed the shooting and are willing to speak to law enforcement.” The Court stated that disclosure should ordinarily occur “within days of an incident, well before a grand jury presentation or possible trial.” In coming to such conclusions, the Court stated that the public has a significant interest in knowing the details about police-involved shootings and that non-disclosure of such information can undermine confidence in law enforcement.

As we previously wrote, in February 2018, the Attorney General issued Law Enforcement Directive 2018-1 to codify the Supreme Court’s decision.  The Directive states that videos of police-involved shootings should be released when the “initial investigation” is “substantially complete,” which means that the principal witnesses have been interviewed and the evidence has been gathered. This should “typically will occur within 20 days of the incident itself.” Only in extraordinary circumstances could a video be withheld longer than 20 days.

In this case, the police-involved shooting occurred on January 28, 2019 and ECPO still refuses to release the officer’s identity or the police videos more than three months later.

NJ Advance Media has written an article about the lawsuit, which provides more details about the underlying shooting incident. A hearing date has not yet been set by the court.

*Photo by Matt Popovich on Unsplash

Lawsuit Seeks Settlement/Separation Agreement For Corrections Officer

NJ Advance Media has written about the recent lawsuit we filed on behalf of Libertarians for Transparent Government seeking a settlement/separation agreement between Cumberland County and a corrections officer who allegedly had inappropriate relationships with inmates. The lawsuit also asks the Court to find that Cumberland County violated OPRA when it told Plaintiff that the corrections officer was “terminated for disciplinary reasons,” when the Pension Board’s meeting minutes state that he was allowed to “retire in good standing.”

PSWH partner CJ Griffin is quoted in the article:

Attorney CJ Griffin, representing the plaintiff, argued that the county has provided a distorted view of Ellis’ case.

“By indicating that Ellis had been terminated for a disciplinary infraction, it leads the public to believe that Ellis paid a price for his admitted misconduct,” the suit states, “In reality, according to the pension board’s minutes, Cumberland County instead allowed him to ‘retire in good standing.'”

The South Jersey Times also published an editorial on the case, arguing that settlement agreements with employees should never be confidential.

For more information on the lawsuit and to review the pleadings, visit John Paff’s “NJ Open Government Notes” blog.

For questions about OPRA, contact CJ Griffin at cgriffin@pashmanstein.com.

 

 

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.”

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.

Appellate Division Rules Agencies Cannot Hide Behind Technology

Last week, the Appellate Division issued a published decision that is very important to transparency.  While the court’s analysis of its standard of review over GRC decisions will excite appellate attorneys, it is the more substantive portion of the court’s decision that grabbed our attention.

The case is Conley v. N.J. Dep’t of Corrections, ___ N.J. Super. ___ (App. Div. Jan. 12, 2018), and it involves an OPRA request that was filed by Kevin Conley, an inmate at the New Jersey State Prison.

Mr. Conley’s OPRA request sought “monthly remedy statistical reports” that were required to be produced by N.J.A.C. 10A:1-4.8(a)(4) and other federal laws. He had requested these reports in the past and they were always produced, but this time the DOC responded by saying that it had adopted a new computerized database in January 2014 and the requested monthly reports “are no longer generated or available.”

Mr. Conley objected, noting that he had always gotten the reports before and that the DOC was mandated by law to produce these monthly reports. The DOC continued to deny the request, insisting that it no longer generates the reports and that it was not obligated to “create a record.”

Mr. Conley filed a complaint on his own in the Government Records Council (tip: we advise going to court instead!) and lost. The GRC accepted the DOC Custodian’s certification that it did not possess the monthly reports and ruled that it did not violate OPRA.

The Appellate Division reversed the GRC. It noted that the DOC was mandated by federal and State regulations to make the monthly reports. It held that were it to accept the DOC’s argument that the report was no longer available based on the manner by which DOC chose to store this public data, it would render “the public policy of transparency and openness the Legislature codified in [OPRA] unacceptably vulnerable to bureaucratic manipulation.”

Importantly, the Court held that “[t]echnological advancements in data storage should enhance, not diminish, the public’s right to access ‘government records’ under OPRA . . . . A government agency cannot erect technological barriers to deny access to government records.”

What does this mean for OPRA requestors?  This case builds upon the Supreme Court’s recent holding in Paff v. Galloway, which held that electronically stored information is a government record that must be produced. Where an agency is obligated by law to produce a certain type of report or a specific document each month (or year) and it fails to do so because it has moved to an electronic database, it cannot avoid its obligations under OPRA. It would need to pull data from its database to produce the report/document to the requestor.

For assistance with OPRA matters, please contact CJ Griffin at 201-488-8200 or cgriffin@pashmanstein.com.