Open Public Records Act

In recent months, the New Jersey courts have issued several decisions regarding a public entity’s obligations under the Open Public Records Act (“OPRA”). In case you missed them, check out our articles from June 20 and June 27 regarding recent OPRA cases. This week’s article will focus on Gordon v. City of Orange in which the New Jersey Appellate Division on June 23, 2017 reversed and remanded the Government Records Council’s (“GRC”) ruling that the City did not knowingly and willfully violate OPRA by failing to respond to a request for records seeking disability insurance payments made to the City Clerk and records related to his sick leave.

On June 25, 2013, Katalin Gordon submitted an OPRA request to the City seeking all records of disability insurance payments received and sick days accumulated by the City Clerk for the time period July 1, 2010 to June 5, 2013. The City denied her request, claiming that the records involved ongoing litigation which prevented the City from disclosing them. Thereafter, Gordon requested the City to provide specific OPRA references supporting its position. The City responded essentially that Gordon would need to submit a new OPRA request because her initial one did not seek an OPRA reference. Gordon denied that she was obligated to do so.

After the City continued to deny Gordon’s request, she filed a complaint with the GRC. Gordon claimed that the City was required to provide specific legal justification for the denial and sought disclosure of the records. Gordon also requested that the GRC rule that the City’s conduct amounted to an intentional and deliberate violation.

On April 29, 2014, the GRC issued an interim order determining that the City must disclose the records requested by Gordon regarding the Clerk’s disability insurance payments and accumulated sick days. The GRC criticized the City for failing to set forth a specific lawful basis for denying the requests contrary to its burden under OPRA. On May 9, 2014, the City certified to the GRC that it complied with the interim order. On September 30, 2014, the GRC issued a final agency decision affirming the interim order. The final order also acknowledged the City’s failure to provide a specific legal basis for the denial and the City’s failure to prove that the denial was authorized by law. However, the GRC disagreed with Gordon and found that the City’s failures were neither willful nor deliberate.

Gordon then appealed the GRC’s final agency decision to the Appellate Division, which agreed with Gordon. The Appellate Division held that the City’s denial of her OPRA request was wilful and deliberate. In reaching its decision, the Appellate Division found that the City’s purported reason for denying the OPRA request due to “ongoing litigation” was false, as there was no litigation at the time Gordon made the request. Further, the City could not convince the Appellate Division that it mistakenly mischaracterized an ongoing investigation as litigation. The Appellate Division also reasoned that notwithstanding an investigation, OPRA still required the disclosure of salary and payroll records.

OPRA permits the GRC to impose civil penalties on a public entity that unreasonably denies access to records in a knowingly and willful manner. Having found the City’s actions to be a willful and deliberate denial under OPRA, the Appellate Division remanded the matter to the GRC to determine an appropriate penalty.

It’s not very often we hear from our State’s Supreme Court on cases involving the Open Public Records Act (“OPRA”). On June 20, 2017, the New Jersey Supreme Court in Paff v. Galloway Township expanded the scope of OPRA to require public entities to produce information relating to the “sender,” “recipient,” “date,” and “subject” of emails even if that means the agency would need to create a new document.

In June 2013, John Paff made an OPRA request under N.J.S.A. 47:1A-1 et seq. to Galloway Township (“Township”) seeking fields of information from all emails sent by the Township Clerk and the Township Police Chief for a specific two-week period. Paff sought an itemized list of the following categories of information in each email: “sender,” “recipient,” “date,” and “subject” – often referred to as an email log. He provided the Township with an email log produced by the Township in response to a similar request six months earlier. The Township denied Paff’s OPRA request explaining that only the emails were government records subject to disclosure, not the embedded information. The Township, like many public entities, took the position that the information sought by Paff by way of an email log would require it to create a new government record, which it is not obligated to do under OPRA.

After the Township denied the OPRA request, Paff initiated a complaint in the New Jersey Superior Court. The trial court ordered the production of the field information, reasoning that N.J.S.A. 47:1A-1.1 defines a “government record” as “information stored or maintained electronically.” In contrast, the Appellate Division reversed, concluding that OPRA requires only the production of the emails and not the information electronically stored. Unfortunately for the Township, the Supreme Court disagreed with the Appellate Division and reversed, reasoning that the Appellate Division narrowly interpreted OPRA contrary to its objectives or statutory language.

Pertinent to the Supreme Court’s analysis were the following facts. First, between 2011 and 2012, the Township routinely produced email logs approximately 100 times. Second, the Township’s technology allowed it to produce the fields of information within a few minutes which demonstrated no significant technological burden. Third, the Township’s Clerk contacted the Government Records Council (“GRC”) seeking clarification whether it could deny email log requests on the basis that it did not maintain such logs and is not requested to create records under OPRA. The GRC responded that while its guidance did not “constitute legal advice,” the GRC and the Courts have held that public entities are not required to create new records.

The Supreme Court viewed the issue as one of statutory interpretation and agreed with the trial court that OPRA defines a “government record” as “information stored or maintained electronically.” The Court further reasoned that the Legislature did not define government records as only documents or files maintained electronically – rather the key word is information. Specifically, the Supreme Court found:

A document is nothing more than a compilation of information — discrete facts and data. By OPRA’s language, information in electronic form, even if part of a larger document, is itself a government record. Thus, electronically stored information extracted from an email is not the creation of a new record or new information; it is a government record.

The Supreme Court also rejected the Township’s reliance on the GRC’s guidance, explaining that the Courts are not required to defer the GRC’s analysis and further, that the GRC informed the Township that its guidance should not be construed as legal advice.

As a result of the Supreme Court’s decision, public entities will likely face an increase in requests for email logs which they can no longer deny on the basis that it is a creation of a new document. However, the entity must still analyze whether any of OPRA exemptions or exceptions prevent disclosure. Further, they must determine whether any redactions are required.

On June 14, 2017, the New Jersey Appellate Division in Stop & Shop Supermarket Company v. Bergen County Board of Chosen Freeholders held that a requestor who makes a request for records under the Open Public Records Act (“OPRA”) and receives such records prior to initiating formal litigation, even if the response is delayed, is not entitled to attorney’s fees because the issue is considered moot.

Stop & Shop Supermarket (“Stop & Shop”) challenged the site plan application of Inserra Supermarkets, Inc. (“Inserra”) before the Bergen County Planning Board and Bergen County Board of Chosen Freeholders (the “Boards”). On July 7, 2011, Stop & Shop submitted two OPRA requests to the Boards seeking documents regarding Inserra’s site plan application, to which Stop & Shop received responsive documents on August 8, 2011. Approximately three years later on June 26, 2014, Stop & Shop submitted another OPRA request seeking Inserra’s site plan application documents. On July 3, 2014, the Boards responded with additional documents which were not part of the August 2011 OPRA response.

Stop & Shop then filed a declaratory judgment action in the Superior Court of New Jersey – Law Division against the Boards seeking a finding that the Boards violated OPRA and the common law right of access for failure to provide all of the requested documents in the August 2011 response. Stop & Shop also demanded counsel fees. The Boards filed a motion to dismiss for mootness, which the Law Division granted. Stop & Shop appealed.

In OPRA cases, if the Court finds that the government entity violated the statute, then the requestor is generally considered a prevailing party entitled to attorney’s fees. The Court considers whether the lawsuit was a catalyst in causing the public body to comply with the law.

Here, the Appellate Division affirmed the Law Division’s reasoning that since Stop & Shop already received all of the documents it sought, its litigation was moot. Simply stated, OPRA litigation is for requestors who are improperly denied access – here, no access was denied. There was no justiciable controversy. Further, the Boards voluntarily provided the documents prior to formal litigation, thereby invalidating Stop & Shop’s argument that it was a catalyst in the production of documents. For these reasons, the Appellate Division upheld the dismissal of Stop & Shop’s OPRA complaint.

On January 13 and 19, 2017, the New Jersey Appellate Division issued two unpublished decisions in the favor of public entities regarding redactions made to documents disclosed pursuant to the Open Public Records Act (“OPRA”). These cases clarify what information may be redacted from government records when released under OPRA.

Public agencies, including school districts and charter schools, must comply with OPRA, which requires disclosure of a government record unless a specific exception applies. An individual who believes that a public agency improperly denied his or her OPRA request may challenge that determination by filing a complaint in Superior Court or with the Government Records Council (“GRC”).

In Wolosky v. Sparta Board of Education, Plaintiff submitted an OPRA request to the Sparta Board of Education (“Board”) for invoices from the Board’s attorney for a three-month period. The Board provided the requested government records but redacted student initials which appeared on the invoices. Plaintiff sued in Superior Court. The trial court upheld the Board’s redactions to the documents. Plaintiff then appealed to the Appellate Division, which affirmed the trial court’s decision.

While a public entity’s legal bills are generally disclosable under OPRA, specific entries should be redacted if any of OPRA exceptions apply, such as the attorney-client privilege. Moreover, certain information should also be redacted if an individual’s privacy interest outweighs the public’s access to the record. In analyzing the redactions, the Appellate Division rejected Plaintiff’s argument that the initials are sufficient to protect the privacy interests of the students. The Appellate Division recognized the heightened level of privacy attached to student information and upheld the redaction of student initials.

In Scheeler v. New Jersey Department of Education, Plaintiff challenged the New Jersey Department of Education’s (“NJDOE”) redaction of school board members’ home street addresses on financial disclosure statements. In this case, Plaintiff made an OPRA request to the NJDOE seeking financial disclosure statements filed with the School Ethics Commission for various Woodbine Board of Education members. In response, the NJDOE provided the documents, disclosed each person’s town, state, and zip code but redacted street addresses. Plaintiff first filed a complaint with the GRC, which upheld the NJDOE’s decision. Thereafter, Plaintiff appealed to the Appellate Division.

The Appellate Division upheld the NJDOE’s redactions, reasoning that the privacy interests of the board members outweigh the public’s access to government records. While board members are elected to public office, the Appellate Division agreed with the GRC that they do not waive their right to separate service from their personal lives. Such involuntary disclosure could “chill an individual’s interest in running for office.” Moreover, no statute or regulation mandates that the financial disclosure statement include a home address.

OPRA requests must be analyzed on a case-by-case basis. Even if a government record is disclosable, certain portions of that record could require redaction to protect an individual’s personal information.

By:  Sanmathi (Sanu) Dev

In a published decision dated April 18, 2016, the New Jersey Appellate Division in Paff v. Galloway Township, 444 N.J. Super. 495 (App. Div. 2016) upheld a public entity’s denial of an Open Public Records Act (“OPRA”) request for email logs, finding that OPRA creates no obligation on the public entity to create new records that do not already exist.  Plaintiff submitted an OPRA request to Galloway Township (“Township”) for an itemized list showing the sender, recipient, date, and subject of all emails sent by the Township’s Clerk and Chief of Police for a certain time period.  It is important to note that Plaintiff requested logs of the emails, which did not exist at the time the OPRA request was made, rather than the actual emails.  After the Township denied the request, Plaintiff sued in Superior Court seeking to compel the Township create and provide the email logs.

While the OPRA statute broadly defines a “government record,” to which a member of the public has access, the statute in no way mandates that a public entity create a record or document. The Courts have routinely denied OPRA requests for information, as opposed to a request for a specific government record. The Appellate Division reasoned that the metadata sought by Plaintiff in the form of email logs containing the sender, recipient, etc. of the email constituted information and not a record. Notwithstanding the fact that the information sought was stored or maintained electronically in other government records, namely the emails, the logs themselves are not government records because they would need to be newly created solely in response to a request for information and did not exist prior to the OPRA request.

The Appellate Division rejected Plaintiff’s arguments that it required little effort for the Township to generate the email logs based on its technology and that the Township previously implemented an informal policy of creating these logs in response to certain OPRA requests. Even if a public entity has the technical capacity to create the information or had a past practice of creating the logs, these factors are not compelling because nothing under OPRA requires the creation of new government records after an OPRA request is submitted.

The bottom line – an OPRA request, by definition, must seek a specific government record. If the OPRA request asks for information and necessitates the public entity to create a new document that was not in existence before the request was made, the public entity may deny the request, absent any internal policy.

In a published decision dated September 17, 2015, the New Jersey Appellate Division in A.A. v. Gramiccioni, et al., 442 N.J. Super. 276 (2015) affirmed the trial court’s determination that, under the New Jersey Open Public Records Act (“OPRA”), an individual may not anonymously file a complaint in Superior Court.  OPRA governs the public’s access to government records in New Jersey. Public agencies, including school districts and charter schools, must comply with OPRA, which requires disclosure of a government record unless a specific exception applies. An individual who believes that a public agency improperly denied his or her OPRA request may challenge that determination by filing a complaint in the Superior Court or with the Government Records Council.

A.A. filed an anonymous complaint in Superior Court after the Monmouth County Prosecutor’s Office denied his OPRA request seeking records pertaining to an investigation of a municipal employee who allegedly stole an electric generator. A.A. refused to identify himself and chose to file the complaint using only his initials. The Prosecutor’s Office moved to dismiss the complaint pursuant to Rule 4:26-1 for A.A.’s failure to prosecute in the name of the real party in interest. The Appellate Division agreed with the trial court’s reasoning that while OPRA permits an individual to anonymously request records from a public agency and the Government Records Council accepts anonymous complaints, OPRA does not allow the filing of an anonymous complaint in Superior Court.

The Appellate Division reasoned that the Legislature has not expressly provided OPRA requestors the right to proceed anonymously in Superior Court, unlike other matters, such as those involving child victims or abuse. Moreover, the Appellate Division found that no court rule authorizes an individual to file an anonymous complaint in Superior Court.  Specifically, Rule 1:4-1(a) requires that a complaint in a civil action include the names of all parties absent any express authorization by statute or rule or some compelling reason. A.A. presented no persuasive reason to proceed anonymously, and the Appellate Division affirmed the trial court’s dismissal of the complaint.

In addition, the Appellate Division also upheld the trial court’s determination to dismiss the plaintiff’s complaint on the grounds that he failed to comply with Rule 4:67.  A.A. filed an action in lieu of prerogative writs to challenge the denial of his OPRA request instead of an Order to Show Cause and Verified Complaint as required by Rule 4:67.

School districts must not deny an OPRA request on the sole basis that the requestor fails to disclose his or her identity. However, if that anonymous individual seeks to challenge a denial of an OPRA request in Superior Court, the school district should seek to dismiss the complaint. The A.A. v. Gramiccioni case serves as a reminder that failure to comply with the procedural and technical filing requirements in Superior Court will lead to dismissal of an OPRA lawsuit.