Tag Archives: OPRA request

Agencies May Charge Special Service Charges, But Only In Rare Cases

One question we frequently receive is whether an agency can charge a requestor an hourly rate to respond to an OPRA request.   The answer is yes, but only in specific circumstances where a requestor seeks an extraordinarily large volume of records.

N.J.S.A. 47:1A-5(c) provides that:

Whenever the nature, format, manner of collation, or volume of a government record embodied in the form of printed matter to be inspected, examined, or copied pursuant to this section is such that the record cannot be reproduced by ordinary document copying equipment in ordinary business size or involves an extraordinary expenditure of time and effort to accommodate the request, the public agency may charge, in addition to the actual cost of duplicating the record, a special service charge that shall be reasonable and shall be based upon the actual direct cost of providing the copy or copies

Our courts and the Government Records Council consider several factors in determining what constitutes an “extraordinary expenditure of time and effort.”  Specifically, they look at:

  • The volume of government records involved
  • The period of time over which the records were received by the governmental unit
  • Whether some or all of the records sought are archived
  • The amount of time required for a government employee to locate, retrieve and assemble the documents for inspection or copying, and then return them to their original storage location
  • Whether redaction is required
  • The size of the agency and number of employees available to accommodate document requests
  • The availability of information technology and copying capabilities

In other words, what may be “extraordinary” to one very small agency might be routine to larger agencies.

There are only three published judicial opinions on the issue of special service charges.  The Supreme Court permitted a special service charge where millions of microfilmed land records needed to be redacted by an outside vendor. See Burnett v. County of Bergen, 198 N.J. 408 (2008) (permitting the agency to pass along the actual cost to the requestor). The Appellate Division permitted a special service charge where deputy attorney generals spent over 55 hours reviewing and redacting 15,000 emails. Fisher v. Division of Law, 400 N.J. Super. 61, 65 (App. Div. 2008).  Finally, the Law Division permitted a special service charge where the requestor sought six-and-a-half years of legal invoices by four different law firms, which totaled thousands of redacted pages. See Courier Post v. Lenape Reg’l High Sch., 360 N.J. Super. 191, 199 (Law Div. 2002).

Generally, however, most special service decisions reside with the GRC.  Though they are not precedential in court, the decisions are instructive.  Recently, in Rozzi v. Lacey Twp. Bd. of Educ., GRC Complaint No. 2015-224 (Jan. 31, 2007), the GRC ruled that a school board could not charge a special service charge for a request where it took the agency four hours to retrieve 37 pages of records from storage. Even though the custodian certified that the requested checks were difficult to locate in numerous boxes in the agency’s storage site, the GRC held that “given the amount of time expended, just over half of a working date, in tandem with the number of responsive records (37 pages) that were not redacted, and the resources available to the school district [(a district with 3,000 students and a $60 million budget)], the evidence of record does not support that the special service charge was warranted or reasonable due to an ‘extraordinary amount of time and effort.’”

As a general rule, most GRC decisions have found no special service charge was warranted where a request took less than ten hours to fulfill, but response times above ten hours may invoke a special service charge for smaller agencies. See Diamond v. Twp. of Old Bridge, GRC Complaint No. 2003-15 (Feb. 18, 2014) (holding 4 hours of time did not justify special service charge); Carter v. Franklin Fire District No. 1, GRC Complaint No. 2013-281/2013-282/2013-283 (Oct. 28, 2014) (holding no special service charge warranted for nearly roughly 8 hours of time to search for emails); Verry v. Borough of South Bound Brook, GRC Complaint No. 2010-105/2010-106. Compare Loder v. County of Passaic, GRC Complaint No. 2005-161 (Feb. 8, 2016) (permitting special service charge where it took 32 hours to review thousands of pages); Vessio v. Twp. of Barnegat, GRC Complaint No. 2006-70 (April 25, 2007)(permitting special service charge where request took 14 hours of review); Renna v. County of Union, GRC Complaint No.: 2004-134 (April 11, 2006)(permitting service charge for nearly 40 hours of time to compile records.).

Often, agencies hold the records “hostage” unless the requestor first pays the fee.  Luckily, our courts have held that paying the fee in order to gain access to the records does not mean that a requestor forfeits the right to challenge the fee in court and get a refund.

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

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 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.

My OPRA Request Was Denied. Now What?

OPRA requires public agencies to respond within 7 business days of your request. (Tip: Begin counting the first business day after you filed the request).  A public agency must respond within 7 business days and either: 1) Produce responsive records; 2) Tell you that access is being denied and reason for the denial; or 3) Ask for an extension of time to respond.

But what do you do if the government fails to respond (a deemed denial) or denies access to a record that you know is not exempt?

The best course of action is to immediately speak to an attorney, who can work with you to gain access to the records.   This frequently requires a lawsuit filed in Superior Court.  The most important thing to remember is that your action must be filed within the statute of limitations, which is 45 days. The process for filing a lawsuit in Superior Court is as follows:

  1. A Verified Complaint and Order to Show Cause is filed.  Each county has a designated “OPRA Judge” who will hear the matter.
  2. The OPRA Judge will review and sign the Order to Show Cause, which sets a briefing schedule and a hearing date.
  3. The pleadings are then served upon the public agency and custodian.
  4. Often, a public agency may work with your attorney to settle the case by producing records and paying the attorneys’ fees.
  5. If the parties are unable to settle, the agency will file an answer and opposition to your lawsuit.
  6. Your attorney then has an opportunity to file a reply brief
  7. A hearing is held, wherein the judge will hear arguments from both sides. For simple cases, the Judge will usually enter a ruling that day. More complex cases may require a little more time for an opinion to issue. In certain circumstances, the court may allow for discovery (interrogatories, depositions) to occur.
  8. If you win, the Judge will order the agency to produce records to you and your attorney will file a fee application asking the Court to order the agency to pay your counsel fees and costs of suit.  (Many attorneys, like Pashman Stein Walder Hayden, represent requestors on a contingency basis which means that if you lose, you will not owe any counsel fees).

Again, the most important thing to remember is that there is a very short timeline for filing the initial Verified Complaint – 45 days from the date your request was denied (or, if the agency fails to respond, the date the response was due).

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

 

 

How Soon Must Government Records Be Available to Requestors?

Section 5 of OPRA is clear that government records must be available “as soon as possible.” It then provides an outer time limit for public agencies—records must be produced as soon as possible, “but not later than seven business days after receiving the request.”  Unfortunately, fewer and fewer public agencies comply with these rigid timelines.  Most agencies produce records on the 7th business day, even though they are supposed to be available “as soon as possible.”  And many agencies have moved to automatically taking an extension of time for each and every OPRA request, even requests that would require minimal time and effort to fulfill.  The New Jersey Supreme Court has stated that the purpose of OPRA is to ensure “swift access” to government records, but the actions of many public agencies have made obtaining government records a drawn out, lengthy process.

In enacting OPRA, the Legislature declared that some records should be so readily available that the 7-day outer limit is not applicable at all.  Some records, such as budgets and contracts, must be made available “immediately.”  Simply put, any person should be able to walk into city hall (or send an email to the city clerk) and “immediately” receive a copy of the city’s budget, contracts, vouchers, etc.  Unfortunately, this is not always how it works.

As detailed in an article by The Record, a records requestor went to the Clifton Board of Education to obtain a copy of, among other records, a contract between the BOE and a tree cutting service.  Initially she was told that she would have to wait 7 business days.  Because she wanted the contract for the BOE meeting the next night and knew her rights, the requestor demanded that she was entitled to “immediate” access to the contract.  Ultimately, the BOE let her look at the contract, but would not let her take pictures of it with her phone’s camera or have an actual copy of the contract. Even though a copy of the contract had already been made, the BOE’s employee tore that copy up and instead told the requestor that the contract would be released “within 7 business days.”   The requestor filed a complaint with the Government Records Council,* alleging it is a violation of both OPRA’s “immediate access” provision.  It is also clear that the record was not produced “as soon as possible.”

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

*Pashman Stein represents the requestor in this case.

 

New Jersey Supreme Court Accepts Security Camera Case

The New Jersey Supreme Court has granted the Township of Bloomfield’s Motion for Leave to appeal in Gilleran v. Twp. of Bloomfield, 440 N.J. Super. 490 (App. Div. 2015, making the Appellate Division’s decision subject to the Court’s review.

In this case, Ms. Gilleran initially filed an OPRA request for a week’s worth of video footage from a security camera at the rear of the Municipal Building. She sought the footage to confirm whether certain politically connected individuals were visiting the municipal complex, as was rumored.  The camera is in plain sight and sits above the mayor’s parking spot.  At the Township’s request, Ms. Gilleran narrowed her request to a single day of footage.   The Township denied the request, stating it was exempt pursuant to a provision of OPRA that “emergency or security information or procedures for any building or facility which, if disclosed, would jeopardize security of the building or facility or persons therein’ is exempt from disclosure.” Ms. Gilleran sued to gain access to the video footage.

In opposing Ms. Gilleran’s suit, the Township essentially argued that the security-related exemption was a blanket exemption.  No one from the Township watched the tape, but it argued that the footage “could” contain images of victims reporting crimes to the police station next door, confidential informants, or others reporting crimes.  The trial court ruled that the exemption was not a blanket exemption and that without watching any of the tape, the Township could not meet its burden of proof.  The Appellate Division affirmed in a published opinion and agreed that the exemption was not a blanket exemption.  The appellate panel held:

With respect to the particular camera in this case and information contained on its recordings, Administrator Ehrenburg’s certification was not sufficiently specific to establish a risk to the safety of any person or property or jeopardy to the security measures taken for the building. Bloomfield provided no specific information from police officials stating that the identity of informants, crime victims, or confidential witnesses would in fact be revealed and specifying what kinds of activities occurred outside the police station during the period of recordings that Gilleran requested. It provided no information by the persons responsible for installing or operating the security camera to indicate that important security strategies or techniques would be disclosed. For example, there was no indication that the security camera might have blind spots in its apparent surveillance area, or that the clarity and sharpness of the imagery recorded would be revealed in a way that might compromise the strategic deterrent effect of the security camera or overall security system of the building. The Administrator’s “conclusory and general allegations of exemptions,” see Newark Morning Ledger, supra, 423 N.J. Super. at 162, were insufficient to justify withholding the recordings from disclosure.

[Gilleran v. Twp. of Bloomfield, supra, 440 N.J. Super. at 498)]

Defendants filed a motion for leave to appeal to the Supreme Court.  In accepting the case, the Supreme Court’s website presents the question as: “Does the Open Public Records Act require the Township to disclose video recordings from a security camera surveilling the back of the Township’s municipal building (i.e., Town Hall)?”

Organizations who wish to file amicus curiae briefs have until January 20, 2015 to file their motions for leave to appear and accompanying briefs, pursuant to Rule 1:13-9.

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

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.

Sunshine Week: Rich Rivera

Today’s Sunshine Week profile features Rich Rivera, a police practices expert who uses OPRA to monitor police misconduct and the use of force by police officers on citizens.  Mr. Rivera is the Chairman of the Latino Leadership Alliance of New Jersey’s Civil Rights Protection Project, which addresses the community’s needs relating to police services and police interactions. He is a former Board Member of the ACLU of New Jersey, where he co-authored the report “The Crisis Inside Police Internal Affairs.”  Pashman Stein has litigated several cases on Mr. Rivera’s behalf.

Interview with Rich Rivera:

  1. When and how did you initially become interested in the open government movement?

In the late 1990s, when I began researching policing in New Jersey.

  1. What types of government records or open government issues interest you most?

Anything relating to policing, as well as government efficiency and draconian government policies.  All of my requests are made to work towards reform and government transparency.

  1. How many OPRA requests do you file a year? How many times would you estimate the public agency violates OPRA? Of those, how many do you actually litigate?

I file over 100 requests each year. Custodians violate OPRA in about half of my requests, but I litigate about five instances a year. So overwhelmingly, the violations go unchecked.  I gave up on GRC complaints more than 5 years ago and file exclusively in Superior Court now, where you get results faster.

  1. If you could persuade the Legislature to amend OPRA, what would be your top suggestions?

I would ask the legislature to give some teeth to upholding public records access and to develop penalties for the unlawful destruction of public records.  As it stands, there are some entities that purge records after public access requests and that’s simply a crime.  But, an OPRA requester has no real recourse when that occurs.

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

Must I Use the Agency’s Official Request Form?

Most public agencies have adopted official OPRA Request Forms that they place on their websites.  For frequent requestors, filling out the official form each and every time a request is made can be time consuming so many opt to send their requests in the body of an email to the records custodian.  According to New Jersey case law, this is perfectly acceptable.  In Renna v. County of Union, 407 N.J. Super. 230 (App. Div. 2009), the Appellate Division held that no public agency may deny an OPRA request simply because the requestor did not use the agency’s official OPRA Request Form.  However, a requestor still must be careful to provide the agency with enough information to properly process the request.  We recommend the following template when submitting your request via email:

Please accept this e-mail as my request for government records in accordance with the Open Public Records Act (OPRA) and the common law right of access. Please respond and send all responsive documents in electronic format to me via e-mail at your name @ your address.com.

Records requested:

[Insert your records request here.]

I would appreciate if you would acknowledge your receipt of this e-mail.

Thank you for granting access to these records within seven business days.

Your Name
Your Address
Your Phone Number
Your Email Address

If you wish to receive the documents in some other format, or wish to pick up hard copies, you must indicate such.

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

Drafting a Valid OPRA Request

When you make a valid OPRA request, a public agency has seven business days to respond. But, if your request is invalid for some reason, the custodian can deny your request.  The clock will then start all over again if you re-write your request and re-submit it.  Here are some basic guidelines to help you craft requests that will be upheld by the courts:

  1. Make sure that your request seeks a record, and not information. Invalid Request: “Please provide the times when Employee X arrives to work.”  Valid Request: “Please provide copies of Employee X’s time card.”
  2. Make sure your request is for a narrow, identifiable set of records. Invalid Request: “Please provide any and all documents relating to Town X and Town Y’s provision of animal control services.” Valid Request: “Please produce the contract for animal control services between Town X and Town Y.”
  3. Identify date range, subject matter, and sender and/or receiver in requests for email correspondence. Invalid: “Please provide all emails to or from the Mayor for January 2014.”  Valid: “Please provide every email to or from the Mayor received or sent in January 2014 regarding the township’s budget.”
  4. Remember to indicate the method by which you wish to receive the records. Do you wish to receive PDF copies of records via email? Do you want hard copies, for which you will incur a copying charge? Or, do you want the document in an electronic format such as a spreadsheet?

Many attorneys, such as those at Pashman Stein, will kindly review your requests to make sure that it is proper and sure to get you the records you seek.

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