Tag Archives: transparency

Bill Would Exempt Addresses of Legislators, Probation Officers

As our readers may recall, Governor Murphy recently signed “Daniel’s Law” into law, which exempts the home addresses of current and former judges, prosecutors, and law enforcement officers from access under OPRA. A bill pending in the New Jersey Legislature would expand those exemptions to include two additional categories of persons.

Among other things, Senate Bill 3209  exempts from OPRA “that portion of any document which discloses the home address, whether a primary or secondary residence, of any active, formerly active, or retired probation officer or member of the Legislature.”

The addresses of current and former judges, prosecutors, law enforcement officers, probation officers and members of the Legislature are likely to appear in land deeds, property tax records, financial disclosure statements, and a variety of other quintessential public records that are available online in a variety of databases.

It is difficult to understand how public agencies would comply with this proposed law. There is no comprehensive list of every current and former probation officer or legislator that has ever worked or held office in this state so that a clerk would know which records to redact. NJ Advance Media has already written about how some agencies are struggling to comply with Daniel’s Law because there is similarly no master list of every current or former judge, prosecutor, or law enforcement officer that has ever worked in this state. Collectively, Daniel’s Law and S.3209 likely exempt tens of thousands of addresses.

S.3209 will be heard on January 14, 2021 at 10:15 a.m. in the Senate State Government, Wagering, Tourism & Historic Preservation Committee.

For questions about this blog or OPRA, please contact CJ Griffin at cgriffin@pashmanstein.com.

2020 Transparency Year in Review

Happy New Year! The year 2020 was a year unlike any other. As we look back at transparency issues that arose over the past year, we hope that this blog finds our readers healthy and well.

Pandemic Creates Transparency Hurdles

Transparency was front and center in New Jersey in 2020, although sometimes it was the lack of transparency that was the focus.

On March 9, 2020, Governor Murphy issued Executive Order No. 103 to declare a Public Health Emergency in New Jersey. Days later, the Legislature rushed to amend the Open Public Meetings Act (OPRA) so that public agencies would not have to comply with the statute’s seven-day deadline during the pandemic. As a result, many requestors have found their OPRA requests stalled for weeks or months with no response. Given that Governor Murphy will likely continue to extend the Public Health Emergency declarations for quite some time, requestors can expect access to be slow for many more months.

Another major transparency hurdle in 2020 was the Emergency Health Powers Act. The 2005 law is designed to give the Governor vast powers during a public health crisis, but it also contains an expansive exemption that sates: “Any correspondence, records, reports and medical information made, maintained, received or filed pursuant to this act shall not be considered a public or government record under [OPRA].” N.J.S.A. 26:13-26. Several media outlets reported that the State was using the exemption to keep important information from the public, such as records about which medical facilities lacked protective gear or information about hospital capacity and supplies at nursing homes.

Police Use of Force Records

Access to police use of force records continues to be a challenge, despite the Supreme Court’s landmark 2017 decision in North Jersey Media Group Inc. v. Township of Lyndhurst, 229 N.J. 541 (2017), which held that such records should be accessible to the public.

In January, the Appellate Division granted our client’s appeal in Rivera v. Township of Bloomfield and held that police body-worn camera videos are subject to OPRA. The video at issue recorded police shooting and killing a man in Bloomfield in August 2017.

In February, the Appellate Division granted our client’s appeal in Digital First Media v. Ewing Township, 462 N.J. Super. 389 (App. Div. 2020). In that case, The Trentonian newspaper sought a copy of a Use of Force Report (UFR) that related to force that Ewing police officers used against a teenager. Although the trial court held that the UFR could not be released due to a statute that exempts records relating to juveniles charged as delinquent, the Appellate Division granted our appeal and ruled that the UFR must be released with the juvenile’s name redacted. Ewing Township was also required to pay the newspaper’s legal fees.

In October, we published a blog detailing how the State rarely complies with Attorney General Law Enforcement Directive 2019-4, which requires disclosure of videos of police deadly force incidents within 20 days. Per our count, only one video had been released within the 20-day deadline all year.

Transparency in Police Discipline

In 2020, there were some positive advances in transparency regarding police discipline on a policy level, but also a mixed bag when it came to judicial opinions on this issue.

In Libertarians for Transparent Government v. New Jersey State Police, the requestor sought the name of a state trooper who was “required to separate from employment” for “engaging in racially offensive behavior.” Although both lower courts denied access to the name, the Supreme Court granted certification and was set to review the case. In mid-June, the Attorney General’s office reversed course, granted access to the name, paid the requestor’s legal fees, and issued Law Enforcement Directives 2020-5 and 2020-6. The Directives require disclosure of the names of officers who receive “major discipline,” information that had never been disclosed before.

Shortly after the Directives were issued, several police unions filed challenges and argued that the Attorney General lacked the authority to compel such disclosures. In October 2020, the Appellate Division upheld the Directives. Shortly thereafter, the Supreme Court granted certification and oral argument is set for March 2021. In the interim, the Directives are stayed and no disclosures have been made.

In mid-June, the Appellate Division reversed a trial court decision that had compelled access to internal affairs reports relating to the former Police Director of the City of Elizabeth Police Department who had resigned after it came to light that he used “racist and misogynistic slurs.” The Appellate Division concluded that internal affairs reports are confidential pursuant to the Attorney General’s Internal Affairs Policy and cannot be released even pursuant to the common law right of access. A petition for certification is pending.

In late June, a bill was introduced in the Senate to make all police disciplinary records subject to OPRA, including police internal affairs files. Although Senate Bill No. 2656 has not yet been heard in a committee, more than 100 organizations have endorsed it. New Jersey is one of only 21 states that treat all internal affairs records confidential.

During a July 15th public hearing before the Senate Law and Public Safety Committee, Attorney General Gurbir S. Grewal seemed to embrace greater transparency in internal affairs investigations, stating: “[W]hen it comes to the transparency of police disciplinary records, New Jersey needs to end its outlier status and move towards greater openness. We can and should be a national leader on this issue.”

In early December, the Attorney General released the internal affairs files of Philip Seidle, a former Neptune police officer who shot and killed his wife in 2015. The Asbury Park Press had been fighting in court to gain access to the files for several years. Its case remains pending as to whether the newspaper is entitled to legal fees and whether such files are subject to access under OPRA.

Other Significant Transparency Decisions

There were a few OPRA decisions by the Appellate Division this year, at least two of which will be reviewed by the Supreme Court next year.

In February, the Appellate Division ruled in Bozzi v. Borough of Roselle Park, 462 N.J. Super. 415 (App. Div. 2020), that there was no privacy interest that precluded a commercial requestor from obtaining a list of dog license holders so that he could send them solicitations for his electric fence installation service. The Supreme Court granted certification in a separate case that reached the same conclusion, Bozzi v. City of Jersey City, and the case is pending.

In June, the Appellate Division held in Simmons v. Mercado, 464 N.J. Super. 77 (App. Div. 2020), that complaints and summonses are not “government records” that are subject to OPRA because the judiciary (which is not subject to OPRA) is the custodian of records and not the police departments who enter them into the judiciary’s computer system. The Supreme Court granted certification and the case is pending.

In September, the Appellate Division issued a disappointing opinion in Libertarians for Transparent Government v. Cumberland County, 465 N.J. Super. 11 (App. Div. 2020). In that case, our client learned that a county corrections officer had faced disciplinary charges for “engaging in sex” with two inmates and bringing them contraband, but that because the officer agreed to cooperate with an investigation he was allowed to retire in good standing with a pension pursuant to a separation agreement. In response to an OPRA request our client filed, Cumberland County stated that the officer was “terminated” and it denied access to the agreement. The trial court ruled that the County violated OPRA by falsely stating the officer was terminated when he was really permitted to retire in good standing and it compelled access to the agreement. Unfortunately, the Appellate Division reversed. Although it agreed that the County had not been truthful about the officer’s reason for separation, it found that the agreement was exempt under OPRA’s personnel record exemption. It remanded the case back to the trial court to determine whether access should be granted under the common law, but the case is currently stayed while a petition for certification is pending in the Supreme Court.

In December 2020, John Paff reported that Cumberland County settled a lawsuit relating to the same officer for $150,000, in which a woman inmate had alleged that he and other corrections officers had sexually abused her.

The danger of the Libertarians decision is that it will permit public agencies to enter into agreements with employees and keep the details of those agreements a secret. This deprives the public of the ability to determine whether the agreement was reasonable and advanced the public’s interests. It will also likely allow the exchange of money without any public oversight whatsoever, something that is highly problematic.

In November, Governor Murphy signed A-1649 into law. Commonly known as “Daniel’s Law,” it exempts the addresses of current and former judges, prosecutors, and law enforcement officers from OPRA. It is unclear how public agencies will be able to comply with this law since there is no central list of such addresses to cross reference.

For more information about this blog or questions about OPRA, contact CJ Griffin at cgriffin@pashmanstein.com.

Court Hears Appeals of AG Major Discipline Disclosure Directives

In mid-June 2020, the Attorney General of New Jersey issued two important police transparency directives, both of which have been challenged and were before the Appellate Division this week.

The first directive, Law Enforcement Directive 2020-5, requires future disclosure of the names of officers who have been subject to “major discipline,” which is described as a sanction of termination, demotion, or five or more days of suspension. 

The second directive, Law Enforcement Directive 2020-6, orders the State Police and other state law enforcement agencies to make a retroactive disclosure, requiring disclosure of the names of those who have received major discipline for the past twenty years.  The Attorney General also gave county and municipal departments the discretion to make retroactive disclosures and some have made the decision to do so.

Unfortunately, several police unions very quickly filed emergent appeals to stop the Directives from taking effect. The Appellate Division granted a temporary stay of the Directives until the appeals could be heard.

On September 16, 2020, the Appellate Division heard oral argument in the appeals, which lasted more than four hours. The full audio of the hearing can be downloaded via the Judiciary here.

CJ Griffin, Partner at Pashman Stein Walder Hayden and Director of firm’s Justice Gary S. Stein Public Interest Center, participated in the oral argument and filed a pro bono friend-of-the-court brief on behalf of the National Coalition of Latino Officers (NCLO) and the Law Enforcement Action Partnership (LEAP), two non-profit organizations comprised of current and former law enforcement officers. These organization’s asked the court to uphold the Directives and argued that transparency earns the public’s trust, which leads to members of the public being more likely to cooperate with investigations, report crimes, and ensure that police departments have proper resources to perform their jobs safely. Additionally, the AG’s transparency Directives would greatly benefit officers of color and women officers because it would allow organizations like NCLO to identify racial and gender disparities in how major discipline has been imposed upon officers.

The Trentonian has published an article summarizing the Appellate Division arguments, which can be viewed here:

CJ Griffin, an attorney for the National Coalition of Latino Officers and the Law Enforcement Action Partnership, said her clients “really want the court to know that not all police officers agree with the unions’ position. In this case, many of the officers are advocates of transparency.”

Griffin said her clients support transparency and believe “transparency really benefits police officers.”

Some of the briefing can be downloaded here:
LEAP & NCLO’s Amici Curiae Brief
ACLU-NJ & 23 Diverse Organization Amici Curiae Brief
ACDL-NJ & Office of Public Defender’s Amici Curiae Brief
Attorney General’s Respondent Brief
Association of Former State Troopers’ Appellate Brief
State Troopers Fraternal Association Appellate Brief
State PBA Appellate Brief
PBA Local 105 Appellate Brief
Superior Officers Association Appellate Brief

For questions about this blog post, please contact CJ Griffin at 201-270-4930 or cgriffin@pashmanstein.com

Transparency a Focus at Legislature’s First Police Reform Hearing

On July 15, 2020, the Senate Law and Public Safety Committee held its first public hearing on police reform in New Jersey. The hearing was intended to be a discussion on policing issues in general and no particular legislative bill was before the committee, but police transparency was a frequent topic.

The hearing opened with live testimony from Attorney General Gurbir Grewal, who acknowledged that even after his recent decision to disclose the names of officers who receive major discipline, New Jersey still lags behind the rest of the nation when it comes to providing transparency over the police disciplinary process. Grewal testified:

We are one of a shrinking number of states where police disciplinary records remain shrouded in secrecy, virtually never seeing the light of day. In recent months, I have come to recognize that our policy isn’t just bad for public trust, it’s bad for public safety. And it’s time for our policy to change.

Although he did not embrace any particular bill, such as S-2656, a bill introduced by Senator Loretta Weinberg to make police internal affairs and disciplinary records subject to OPRA, it can be inferred from the Attorney General’s testimony that he may be inclined to support such a bill and believes it that full transparency is the right thing to do. The Attorney General testified:

“[W]hen it comes to the transparency of police disciplinary records, New Jersey needs to end its outlier status and move towards greater openness. We can and should be a national leader on this issue.”

The only way to be a national leader is to embrace full access to actual internal affairs files–all of them, even those that are not sustained. That is indeed what more than a dozen states do, as the Attorney General testified.

The police unions have have already obtained a stay of the Attorney General’s recent directive requiring disclosure of major discipline. Multiple police unions testified against transparency at the hearing. Therefore, the Attorney General’s testimony addressed the fact that legislative action was needed to make internal affairs records public.

The public was invited to submit written testimony in advance of the meeting. Attorney CJ Griffin submitted personal written testimony explaining why the Attorney General’s recent directive fails to provide real transparency and providing a helpful chart that compares New Jersey to other states on the issue of internal affairs access.  Griffin concluded by saying:

“Unfortunately, in New Jersey we are unable to proactively review IA investigation files to root out the complaints that were erroneously dismissed or expose the shoddy IA investigations. Instead, we have to wait until tragic situations occur for IA information to become public. At that point, the damage is already done.

I was not born and raised in New Jersey, so I feel a sense of pride and ownership in having chosen to make this state my home. In that regard, I have bragged to friends and fellow advocates about the areas of law where we lead the nation. But, in this area—police transparency—we are, as the Attorney General recognized, at the “back of the pack.” We must not only catch up to most other states; we must lead.

 

You can read Griffin’s full submission here.

Griffin also recently submitted an amicus curiae brief on behalf of two non-profit law enforcement organizations, opposing the police unions’ lawsuits to stop the Attorney General’s directives to disclose the names of officers who receive major discipline. You can read about that brief here. The Appellate Division will hear oral arguments in mid-September.

An archived recording of the hearing can be viewed on the Legislature’s website. Additional police reform hearings will be held.

Motion for reconsideration filed in case involving sustained allegations of “racist and misogynistic slurs”

We recently blogged about Rivera v. Union County Prosecutor’s Office, where the trial court granted access to the internal affairs reports of the former Police Director of the City of Elizabeth Police Department, who was the subject of an internal affairs investigation that concluded that he used “racist and misogynistic slurs” in the workplace. As an update, the Appellate Division reversed that decision and concluded that the records were not subject to OPRA on June 19, 2020.

Unfortunately, the Appellate Division did not simply deny access under OPRA. It also concluded that the internal affairs reports were not accessible under the common law. Plaintiff has filed a motion for reconsideration, arguing that it was palpably incorrect for the Appellate Division to reach the issue of common law access because: 1) the trial court never reached the issue below; 2) the parties never briefed the issue before the Appellate Division; 3) the parties never addressed common law access at oral argument; and 4) no court ever reviewed the actual records in camera.

A copy of the motion for reconsideration brief is here.

For questions about this blog or OPRA in general, please contact CJ Griffin at cgriffin@pashmanstein.com or 201-488-8200.

 

State releases name of trooper who engaged in “racially offensive behavior;” Modifies Internal Affairs Policy

In 2017, CJ Griffin of Pashman Stein Walder Hayden filed an OPRA lawsuit against the New Jersey State Police on behalf of Libertarians for Transparent Government, seeking the identity of a state trooper who had been “required to separate from employment” for “engaging in racially offensive behavior.” The trial court dismissed the lawsuit and the Appellate Division affirmed that dismissal, but the New Jersey Supreme Court agreed to hear the case. The appeal is pending.

Today, the State released the name of the trooper.

Additionally, the Attorney General revised the Attorney General Internal Affairs Policy and Procedures so that every police department in the state must start disclosing the names of police officers who commit serious disciplinary violations. Beginning August 31, 2020, police departments must disclose the names of officers who are sanctioned by termination, reduction in rank or grade, and/or a suspension of greater than five days. The State will release the names of officers who received major discipline over the past 20 years.

“This is a victory not only for my client, but also the public,” said CJ Griffin, a partner at Pashman Stein Walder Hayden. “However, we hope this is just the first step and that full transparency will follow soon. The reality is that most internal affairs investigations do not result in major discipline, so New Jersey’s internal affairs functions will still largely remain a complete and total secret. Plus, there are too many loopholes with this policy–agencies can avoid disclosure by simply imposing 4-day suspensions or permitting an officer to resign instead of terminating them.”

“It’s great that we’ll now know the names of police officers who receive major sanctions, but what about all the hundreds of complaints every year that are not sustained? We need full access to actual internal affairs investigation files so that we can ensure that the investigations were conducted correctly and fairly and that bad behavior wasn’t swept under the rug. We shouldn’t have to just put blind faith in our police that internal affairs investigations are thorough and accurate — transparency lets us hold internal affairs units accountable. Transparency builds trust and community trust benefits police departments.”

Today’s policy change by the Attorney General came not long after the Star Ledger published an editorial demanding that internal affairs records be open for public inspection. More than a dozen other states have open internal affairs records, including places such as Florida and Colorado.

 

 

It’s Sunshine Week!

Sunshine Week, which runs from March 15 to March 21, 2020, is an annual nationwide celebration of access to public information. There are many ways that you can get involved–from filing OPRA requests, to writing a letter to the editor, to attending a public meeting. On this blog, we will write several times this week about transparency topics and success we have had recently shedding light on New Jersey government!

Sunshine-Week-Cohen--600x460

To contact us about this blog post or discuss an OPRA denial, email cgriffin@pashmanstein.com or visit the “contact us” tab above.

Access Begins With A Valid OPRA Request

Each month, we receive dozens of inquiries from people who are upset that their OPRA requests were denied. The most frequent basis for denial is that the request is invalid as written. Although there are records custodians who will happily work with the requestor to fulfill a less-than-perfect request, other custodians will quickly deny any request that does not strictly comply with OPRA’s requirements.  A valid OPRA request is thus the critical first step to obtaining public records and it is important to draft a request that follows some basic guidelines.

Guideline 1:  Do not ask questions in an OPRA request. Although people usually file OPRA requests because they have questions about some public issue, an agency has no obligation to answer those questions. An agency’s only obligation under OPRA is to produce non-exempt public records. Although elected public officials may answer questions via email or at a public meeting, an OPRA request must stick to requesting documents.

Guideline 2: Provide a reasonable timeframe. Public agencies are permitted to impose special service charges where a request requires an “extraordinary” amount of time to fulfill. Requestors must be mindful of how many documents will be responsive to the request and keep the timeframe relatively narrow.

Guideline 3: Seek identifiable records. A valid OPRA request seeks identifiable documents. A request that seeks “any and all records relating to the town’s animal control services” is overbroad because it leaves the custodian not knowing what the requestor wants. Instead, requestors must identify specific, such as “I seek the following records relating to the town’s animal control services: shared services agreements for 2018, the health inspection report for the animal shelter for 2018, and all settlement agreements involving the animal shelter for 2018-2019.”

Tip: There are several ways to learn about what types of records might exist:

  1. Look for statutes, regulations and ordinances on the topic. Many government operations must comply with specific provisions of law. Animal control, for example, is highly-regulated and there are state statutes and regulations that require animal shelters to maintain certain paperwork. Looking at the statutes and regulations will help identify some records that might exist.
  2. Look at records retention schedules. All agencies must comply with the State’s records retention laws. Although the records retention schedules do not list every record that must be maintained, they provide some information regarding the types of documents an agency might possess.
  3. Request agency policies. An agency’s written policies, standard operating procedures, or operating handbooks might provide information regarding the types of written reports employees are required to generate or the types of records the agency must keep.
  4. Ask the agency. Believe it or not, many government employees will happily help a requestor identify what record exists if they know what type of information the requestor is seeking.

Guideline 4State the preferred format and method of delivery. A request should indicate if the requestor wants the records to be sent to them via email for free or if they want to receive hard copies, which cost 5 cents per page. The request should indicate the preferred format, such as an Excel file or a PDF. Stating these preferences up front in the OPRA request avoids confusion.

Following these general guidelines will help requestors overcome the first hurdle and send the records custodian on the hunt for responsive government records.

close-up-photography-of-crumpled-paper-963048

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

 

NJ Supreme Court grants certification in OPRA case regarding identity of State Trooper who engaged in “racially offensive” behavior

The New Jersey Supreme Court has granted an OPRA requestor’s Petition for Certification and agreed to hear an appeal in Libertarians for Transparent Government v. New Jersey State Police.

The question the Court certified is:

“Does section ten of the Open Public Records Act, N.J.S.A. 47:1A-10, require disclosure of the name of a state trooper listed in the Office of Professional Standard’s annual report to the Legislature as having been terminated for misconduct?”

For background, N.J.S.A. 47:1A-10 states that personnel records are generally exempt under OPRA, but provides three exceptions to the exemption. At issue in this case is the first exception, which states that:

an individual’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”

Each year, the Office of Professional Standards of the New Jersey State Police issues a public report detailing major discipline that is imposed upon State Troopers.  The 2015 report disclosed the following:

Member pled guilty to acting in an unofficial capacity to the discredit of the Division while off-duty by having questionable associations, engaging in racially offensive behavior and publicly discussing police patrol procedures. The member was required to forfeit all accrued time and separate from employment with the Division.

Upon reviewing that report, the requestor filed an OPRA request asking for the Trooper’s name, title, date of separation and the reason therefor, pursuant to N.J.S.A. 47:1A-10. The State Police denied the request, arguing that it was exempt pursuant to N.J.S.A. 47:1A-10 and the Attorney General’s Internal Affairs Policies & Procedures.

Pashman Stein Walder Hayden partner CJ Griffin sued on behalf of the requestor and argued that “date of separation and the reason therefor” meant that the public is entitled to know the real reason a particular employee separated from employment. In this case, the State Police gave the reason, but would not provide the name or date of separation, frustrating the statute’s purpose. Clearly, the public has a significant interest in knowing the identity of a Trooper who engaged in “racially offensive behavior.” Moreover, the the phrase “required to . . . separate from employment” makes it unclear whether the Trooper was fired or whether he or she was permitted to retire in good standing and move on to another law enforcement position.

Griffin argued that disclosure of the Trooper’s name was required pursuant to the New Jersey Supreme Court’s decision in South Jersey Publishing Co. v. New Jersey Expressway Authority, 124 N.J. 478 (1991), a unanimous opinion written by retired Supreme Court Justice Gary S. Stein. In that case, it was widely rumored that the agency’s executive director was under scrutiny for misusing government credit cards.  The agency met in executive session and discussed its investigation into the matter, then worked out an agreement by which the executive director would “resign in good standing” and receive payment of his salary and fringe benefits for nearly a year after his “resignation.” OPRA did not exist at the time, but Executive Order No. 11 (EO 11) contained language essentially identical to N.J.S.A. 47:1A-10 and required disclosure of an employee’s “date of separation from government service and the reason therefor.”  Applying that provision of EO 11, the Court found it was insufficient for the agency to simply tell the public that there was a “resignation” or “voluntary separation,” but rather that it must disclose “the results of the [agency’s] investigation.”  The Court recognized that disclosure of such information was necessary so that the public could intelligently make an evaluation of whether the agency acted reasonably in permitting the executive director to resign in good standing with several months of salary and benefits.

Unfortunately, in this case, the trial court and Appellate Division both affirmed the State Police’s denial of access. Neither court addressed the New Jersey Supreme Court’s decision in South Jersey Publishing. The Supreme Court will now hear the requestor’s appeal.

The successful Petition for Certification can be found here. Amicus curiae briefs are due on December 26, 2019.

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.