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N.J. Supreme Court Rules That Logs of Government-Related Emails From Elected Officials’ Personal Accounts Are Subject to Disclosure Under OPRA

On June 11, 2026, the New Jersey Supreme Court issued a decision in Rosetti v. Ramapo-Indian Hills Regional High School Bd. of Educ. (A-72-24) holding that the Open Public Records Act (“OPRA”) requires local school board members to produce email logs of government-related communications from their personal email accounts.

In January 2023, a requestor submitted an OPRA request to a local school board seeking various records, including the email logs of board members’ personal emails used to conduct board business during a specified period. When the board failed to respond to the OPRA request, the requestor filed an action in the Superior Court of New Jersey alleging OPRA violations. The trial court held that the board was not required to produce logs from the board members’ personal email accounts. The Appellate Division disagreed, finding the email logs from the board members’ personal email accounts discussing board business were subject to disclosure under OPRA.

The Supreme Court affirmed the Appellate Division’s decision, holding that the board must produce logs of the government-related emails contained in the personal email accounts of the board members. In reaching its decision, the Supreme Court noted that OPRA’s broad reach includes correspondence on personal devices related to government business. The court also relied on its holding in Paff v. Galloway Township, 229 N.J. 340 (2017), where it held that a log of electronically stored information in government email accounts is a government record.

The Supreme Court agreed with the requestor’s assertion that the board members could create acceptable logs by searching their private email account inbox, trash, sent and other relevant folders for board-related emails to create the requested logs. The court further indicated that there may be other acceptable methods to create logs of government-related emails from individuals’ personal email accounts. The Supreme Court indicated that each board member should submit a certification detailing the search conducted of their personal email accounts to allow a court to accurately assess whether proper searches were conducted by the board members. The decision recognized that the issue could have been avoided altogether if the board members refrained from using their personal email accounts to conduct board business. Accordingly, government agencies should advise their employees, officers, elected officials, and other representatives to refrain from conducting government-related business on their personal email accounts.

N.J. Supreme Court Declines Awarding Attorney Fees Under Common Law Right of Public Access

By: Ruhani K. Aulakh, Law Clerk

Editor: Sanmathi (Sanu) Dev, Esq.

On June 20, 2023, the New Jersey Supreme Court in Gannett Satellite Info. Network, LLC v. Township. of Neptune declined to adopt an exception to the American Rule for attorneys’ fees under common law right of access claims to public records, which requires each party to pay its own fees in civil litigation.  The Court held that expanding the four categories of exceptions to the American Rule to include attorneys’ fees under the common law right of access would violate public policy. 

A former police officer employed by Neptune Township (“Township”) killed his wife in 2016 and was sentenced to a thirty-year prison term.  Two years later, the Monmouth County Prosecutor’s Office issued a report on the case that was based on the officer’s Internal Affairs (“IA”) records.  Gannett Satellite Information Network, d/b/a the Asbury Park Press (“Gannett”) submitted a request for the IA records to the Township, pursuant to both the Open Public Records Act (“OPRA”) and the common law right of public access.  The Township’s municipal clerk denied the request, citing to portions of the Internal Affairs Policy and Procedures Manual that addressed the confidentiality of IA records.

Gannett sued the Township in the Superior Court of New Jersey, claiming violations of both OPRA and the common law.  Gannett requested the release of the records and an award for attorneys’ fees.  The Township moved to dismiss the action for failure to state a claim, which the trial court granted in part and denied in part.  The trial court dismissed Gannett’s OPRA claim, but ordered the release of the contested records in accordance with the common law and awarded a partial fee award.

The Township appealed to the New Jersey Appellate Division, arguing that the trial court erred in releasing the requested records and awarding a partial award for attorneys’ fees.  Gannett cross-appealed, arguing that the trial court erred in dismissing its OPRA claim.  The Attorney General informed the Appellate Division that a redacted version of the officer’s IA files would be released, so only the question of attorneys’ fees and the OPRA claim remained.  The Appellate Division affirmed the trial court’s determination that Gannett had no claim to the officer’s IA files under OPRA.  Regarding the award of attorneys’ fees, the Appellate Division held that while the Court recognized a right to attorneys’ fees under the common law right of access in Mason v. City of Hoboken, 196 N.J. 51, 57 (2008), that right is subject to the discretion of the court.  The Appellate Division utilized its discretion and reversed the trial court’s award of attorneys’ fees under the common law right of access.

The New Jersey Supreme Court granted Gannett’s petition for certification, focusing solely on the issue of attorneys’ fees.  The Court affirmed the Appellate Division’s reversal of the award for attorneys’ fees; however, the Court’s reasoning differed.  The Court clarified its holding in Mason, stating that it had not recognized a right to attorneys’ fees under the common law right of access; rather, it construed several provisions of OPRA to determine the award of fees in that case.  As such, the determination of an award for attorneys’ fees under the common law right of access was a question of first impression for the Court.

The Court held that it has recognized exceptions to the American Rule under four general categories.  First, it recognizes an exception pursuant to fee-shifting statutes. Second, it recognizes an award of attorneys’ fees when permitted by court rule.  Third, attorneys’ fees may be awarded in decisions involving breaches of fiduciary duties.  Lastly, an exception may apply where the parties have contractually agreed to an award of attorneys’ fees.

Here, the Court held that an award of attorneys’ fees does not fit within any of the four categories of exceptions.  Further, the Court held that recognizing an exception to the common law right of access case would violate public policy.  The Court reasoned that a common law request for information requires a records custodian to conduct a much more fact intensive analysis to determine whether the requested information should be released.  If there is a threat of an award of attorneys’ fees, a records custodian may be inclined to release information not properly subject to disclosure in order to avoid such an award.  Thus, the Court declined to adopt an exception to the American Rule under the common law right of access.

The Court provided two recommendations to ensure the proper disposition for requests of information pursuant to the common law right of access. First, it recommended that clerks and other records custodians for public entities receive comprehensive training with respect to common law right of access claims.  Second, it urged individuals requesting information pursuant to a common law right of access to explain, in detail, their interest in the subject matter of the material.

35 Second Video Surveillance Footage Disclosable Under OPRA and Common Law Right of Access

On June 29, 2023, the New Jersey Appellate Division issued an unpublished opinion in the matter of Zezza v. Evesham Board of Education.  The appeal arose from a citizen’s request under the Open Public Records Act (“OPRA”) and the common law right of access, for approximately thirty-five (35) seconds of surveillance footage taken from two cameras at an elementary school within the Evesham Township School District (“District”).  The District denied the request for the video footage on the basis of the security exception to OPRA and the case of Gilleran v. Twp. of Bloomfield, 227 N.J. 159 (2016) for the premise the case created a categorical OPRA exception for all public surveillance videos.

The request for the surveillance video arose after plaintiff, Helen Zezza, alleges she was threatened and accosted after her grandson’s baseball game at the elementary school.  The alleged incident was purportedly captured on two of the elementary school’s security cameras.

After the District denied the request for the surveillance video, plaintiff filed a verified complaint in the Superior Court of New Jersey seeking an order to show cause against the District, requesting the court require the District produce the requested security footage and sought attorney’s fees.  Plaintiff also argued the common law right of access to the security footage “outweighs the governmental need for confidentiality.”

The trial court found for plaintiff under both OPRA and the common law right of access.  The trial court ordered the District to produce the surveillance video and determined plaintiff was the prevailing party entitled to an award of $8,046.50 in attorney’s fees.  Specifically, the trial court determined Gilleran allowed for production of a record or portion of a record that does not reveal information about the security scheme of the public building and that it was the District’s burden to demonstrate that the footage would reveal “security compromising information” which the District failed to do.

On appeal to the New Jersey Appellate Division, the District argued the security footage was exempt from disclosure under OPRA and attorney’s fees were not mandatory under the common law right of access.  The Appellate Division disagreed with the District and affirmed the trial court’s decision.  The Appellate Division rejected the District’s contention that Gilleran created a blanket exception for all surveillance videos and also determined the District failed to establish any security concerns to prevent disclosure under OPRA.  Since it was undisputed that OPRA statutorily mandates a fee award to the prevailing party, the Appellate Division rejected the District’s remaining argument the trial judge abused her discretion by awarding attorney’s fees.

No Denial of Access Under OPRA Where Request Submitted to Incorrect Entity

On April 20, 2023 the New Jersey Appellate Division decided an Open Public Records Act (“OPRA”) matter in the case of Owoh v. City of Camden, 2023 N.J. Super. Unpub.  LEXIS 597 (App. Div. Apr. 20, 2023).  The Appellate Division determined the City of Camden (“City”) did not deny access to requested police records and the City was not obligated to retrieve the records from the County of Camden (“County”) a separate public entity.  The firm successfully represented the City on appeal.

Plaintiff-Respondents, Rotimi Owoh, o/b/o African American Data and Research Institute, and Baffi Simmons (“Owoh”) filed an OPRA request with the City back in November of 2018 for various police department records.  The City directed the requestor to the proper custodian of the requested records, the County, as the City had not had its own police force since 2013 when the County assumed all police services for the City.  The requestor filed a denial of access complaint with the Government Records Council (“GRC”) and the GRC determined the City denied access to the requested records, was obligated to retrieve the records from the County because of the Police Services Agreement between the City and the County and awarded attorneys’ fees to Owoh.

The City appealed the GRC’s determination to the Appellate Division on the basis Owoh did not serve the proper custodian with the request, the City was not the custodian of the records and the City could not be under an obligation to retrieve records from a separate public entity.  The Appellate Division found in the City’s favor in all regards and reversed the GRC’s decision finding the City denied Owoh access to the requested records.  The Appellate Division determined the City did not unlawfully deny access to records which were made and maintained by the County and that once the City received the request properly meant for the County, the City’s Custodian complied with the statute by directing the requestor to the proper County Custodian.  Importantly, the Appellate Division vacated the award of attorneys’ fees to Owoh.

Students’ Initials Can Be Redacted in Response to an OPRA Request

By: Angela Reading, Law Clerk

Editor: Sanmathi (Sanu) Dev, Esq.

On September 29, 2022, the New Jersey Appellate Division in L.R. o/b/o J.R. v. Cherry Hill Board of Education issued a published decision affirming a ruling by the Superior Court of New Jersey, which held that a district could redact all parent and student information, including initials, when providing settlement agreements in response to an Open Public Records Act (“OPRA”) request.

In this case, the plaintiff, the mother of a student with a disability, made an OPRA request to the defendant Cherry Hill Board of Education (“Board”) for all settlement agreements in which the Board was named as a defendant and a student and/or their parent was named as a plaintiff. The Board provided the records sought but redacted all parent and student information, including initials. The plaintiff sued, asserting that the Board violated OPRA and improperly withheld information by redacting all personally identifiable information (“PII”).

In January 2015, the trial court granted the Board’s cross-motion for summary judgment, finding the initials were exempt from disclosure under the Family Educational Records and Privacy Act (“FERPA”) and the New Jersey Pupil Records Act (“NJPRA”). The plaintiff appealed and the matter was stayed pending the resolution of L.R. I and L.R. II. Following L.R. II, a special master adjudicated the Board’s motion to dismiss for failure to state a claim and recommended the court grant the motion. Plaintiff appealed the recommendation, and the trial judge affirmed, adopting the master’s findings of fact and conclusions of law.

The discrete issue raised on appeal was whether the Board should have redacted the PII altogether as opposed to leaving the initials intact. The plaintiff asserted the trial court erred by relying on the 2015 summary judgment decision and misunderstood the holdings of L.R. I and L.R. II.

The Appellate Division upheld the trial court’s decision, finding that using students’ initials is insufficient to protect identity as required by FERPA and NJPRA. The Court further held that just because the information may ordinarily be available to and accessible by the public — as legal submissions filed with the court — that does not “ipso facto mean that no legitimate privacy interest predominates.”

School District Counsel Not Considered a Custodian Under OPRA

By: Angela Reading, Law Clerk.
Editor: Sanmathi (Sanu) Dev, Esq.

On June 21, 2022, the New Jersey Appellate Division in S.W. v. Elizabeth Board of Education confirmed in an unpublished opinion that a request made under the Open Public Records Act (“OPRA”) to an attorney for a public entity is invalid. The Appellate Division held that OPRA explicitly requires a request for access to a government record to be “to the appropriate custodian,” and counsel for a board of education is not a custodian within the meaning of OPRA under N.J.S.A. 47:1A-5(g).

This case arose from a special education due process petition brought by the parents on behalf of their son against the Elizabeth Board of Education (“Board”). The Administrative Law Judge (“ALJ”) in that case instructed the parties to stipulate as many documents as possible. The Board’s counsel provided 148 pages of documents, including the student’s grades, progress reports, attendance records, and special education records. The parents claimed that the documents were incomplete.

The parents did not seek to compel discovery before the ALJ for the alleged missing documents.  Instead, the attorney for the parents sent an OPRA request to the Board’s counsel. The Board denied any obligation to provide documents under OPRA because no valid OPRA request had been submitted to the Board’s records custodian, nor to an officer, employee, or office of the district. The parents then initiated a lawsuit in the Law Division of the Superior Court of New Jersey, claiming the Board’s failure to produce the additional documents was a denial of public records under N.J.S.A. 47:1A-5(i) and a violation of OPRA. The parents also claimed that the OPRA request to the Board’s counsel was appropriate because Rule of Professional Conduct 4.2, which prohibits direct communication with a client known to be represented by counsel, prohibited them from communicating directly with the district. After the trial judge ruled in favor of the Board, the parents appealed to the New Jersey Appellate Division

The Appellate Division affirmed the trial court’s decision and upheld the Board’s denial of records as consistent with OPRA’s clear requirement that such a request be submitted to the agency’s custodian. The Appellate Division rejected the claim that the Board’s counsel was covered by the statutory requirement that “an officer or employee of a public agency” who receives an OPRA request must forward the request to the custodian. The Court held that outside counsel representing the agency is not an “officer or employee” of the agency.

The Appellate Division also addressed whether RPC 4.2 prohibits a party that sued a public agency from submitting an OPRA request directly to the agency. The Court said it does not, emphasizing that the RPC exempts communications with the government, such as OPRA requests. Specifically, RPC 4.2 contains an exception for when the law authorizes such direct contact to ensure “a citizen’s right of access to government decision-makers.”

Settlement Agreements of IDEA Cases in the OAL Are Disclosable Under OPRA

By: Angela Reading, Law Clerk

Editor: Sanmathi (Sanu) Dev, Esq.

On May 18, 2022, the New Jersey Appellate Division issued a published decision in the case of C.E. v. Elizabeth Public School District, in which the Court held that settlement agreements resolving Individuals with Disabilities Education Act (“IDEA”) disputes that have been docketed in the Office of Administrative Law (“OAL”) and final decisions incorporating or pertaining to those settlement agreements are subject to disclosure under New Jersey’s Open Public Records Act (“OPRA”).  

Prior to this decision, boards of education typically deemed all special education settlement agreements as confidential student records exempt from disclosure under OPRA. In fact, on July 17, 2019, the New Jersey Supreme Court in L.R. v. Camden City Public School District held that settlement agreements with parents of special education students are not subject to release, absent a court order, even if that document has been stripped of personally identifiable information.  

In this decision, the Appellate Division distinguished L.R. and held it did not apply because the L.R. case did not involve settlements before the OAL, and the IDEA was not at issue. Instead, the Appellate Division determined that IDEA regulations governed.

The Appellate Division held that despite special education agreements being student records, when defendants, such as a public school district, settle matters involving IDEA claims in the OAL, these documents become judicial filings and are subject to a “presumption” of public access. The court explained that N.J.A.C. 6A:14-2.7 designates the OAL to hear special education complaints under the IDEA. Those settlement decisions are then incorporated into a final decision approving the settlement. Thus, under federal IDEA law, 34 C.F.R. § 300.513(d)(2), these decisions, which are judicial filings, must be available to the public after removing any student-identifying information. 

In practice, this precedential Appellate Division decision establishes that to comply with OPRA, a board of education must redact a student’s personally identifiable information before disclosing a special education settlement agreement incorporated into a decision at the OAL. However, agreements resolving special education disputes before the matter is transmitted to OAL, such as mediation agreements or resolution agreements, remain student records exempt from OPRA disclosures under the holding in L.R. v. Camden City Public School District.  

N.J. Supreme Court Rules that OPRA Requires Disclosure of Settlement Agreements with Public Employees

Co-Written by: Becky Batista, Law Clerk.

On March 7, 2022, the New Jersey Supreme Court reversed a decision by the Appellate Division in Libertarians and Transparent Government v. Cumberland County and determined that a settlement agreement between a former corrections officer and his employer, Defendant Cumberland County (“County”) is subject to disclosure under the Open Public Records Act (“OPRA”).

Plaintiff sought a settlement agreement wherein the former County corrections officer admitted to “improper fraternization” with two female inmates and bringing contraband into the jail. Plaintiff requested this agreement and specific information about the officer’s separation of employment pursuant to OPRA. The County rejected the request, claiming it was exempt from disclosure as a personnel record. In lieu of the actual settlement agreement, the County provided Plaintiff with the reason for the officer’s separation of employment in writing. The reason given was inaccurate, which prompted Plaintiff to file suit in Superior Court. The trial court agreed with Plaintiff and ordered the release of the settlement agreement with redactions.  The Appellate Division reversed.

The New Jersey Supreme Court overturned the Appellate Division and agreed with Plaintiff. The Court required disclosure of the settlement agreement with appropriate redactions. OPRA grants the public access to government records unless it is exempt from disclosure under the statute. The Court reasoned that redactions must be made to parts of a document that are exempt from public access before disclosing a government record. Under section 10 of OPRA, most personnel records are exempt, but the statute provides three exemptions to consider. Here, the Court focused on the first exemption, which expressly 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 government record.”

The Court recognized that part of the settlement agreement that Plaintiff sought contains information covered by section 10’s first exemption and noted that records which contain details specified in section 10’s first exemption must be made available after appropriate redactions. The Court stated, “Without access to actual documents in cases like this, the public can be left with incomplete or incorrect information. . . . [A]ccess to public records fosters transparency, accountability and candor.”

Public employers must be mindful of this ruling, as they cannot withhold the entirety of a settlement agreement entered with one of their employees.

GRC Issues Guidance on COVID-19 Impacts on OPRA

As previously addressed on this blog, on March 20, 2020, Governor Murphy signed Assembly Bill No. 3849 into law which relaxes the deadline by which public agencies are required to respond to requests for government records under the Open Public Records Act (“OPRA”) during a period of a declared emergency, such as the current COVID-19 health crisis. On March 26, 2020 the Government Records Council (“GRC”) issued a special statement regarding the modification.

Under normal circumstances, the custodian of records of a public agency must respond to an OPRA request within seven (7) business days by either granting access to the government record or denying access. However, during a State declared emergency, public health emergency, or state of local disaster emergency, the custodian must make a reasonable effort, as the circumstances permit, to respond to a request for access to a government record within seven (7) business days or as soon as possible thereafter. 

In discussing “reasonable efforts,” the GRC advised that the custodian of records is required to respond in writing within seven (7) business days that an extension to a date certain is needed. The custodian should articulate the reason(s) for the extension, which may include retrieval of records located in storage, archives, or off-site; conversion of the records to a different medium; building access restrictions; and/or delay in available personnel needed to provide responsive records.

The GRC also recommends that the public agency advise the public (i.e., via its website) whether the transmission of OPRA requests has changed.

OPRA Deadlines Relaxed Amid Declared Emergencies

Editor: Sanmathi (Sanu) Dev, Esq.

As a result of the public health crisis of COVID-19, on March 20, 2020, Governor Murphy signed Assembly Bill No. 3849 into law which modifies the deadline by which public agencies are required to respond to requests for government records during the period of a declared emergency.  Normally, under the Open Public Records Act (“OPRA”), the custodian of records for public agencies has seven (7) business days to respond to a request made for government records by either granting access to the government record or by denying access.  Failure to respond within the seven (7) business days is deemed a denial of the request.  A custodian of records is also required to notify a requestor within the timeframe if a record is archived and/or in storage and explain when the records may be available.  In addition, under the current law, access to certain records, such as budgets, bills, vouchers, contracts and public employee salary information must be granted immediate access.

The March 20, 2020 amendment permits a relaxation of the timelines for responding to an OPRA request.  Specifically, during a State declared emergency, public health emergency, or state of local disaster emergency, the custodian of a government record must make a reasonable effort, as the circumstances permit, to respond to a request for access to a government record within seven business days or as soon as possible thereafter. 

This amendment is particularly pertinent amongst the current State declared emergency and public health crisis of COVID-19. 

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