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The Impact on Governmental Entities: Governor Murphy Amends OPRA

By: Lindsay S. Romeo, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

On June 5, 2024, Governor Phil Murphy signed legislation (S-2930) which amends New Jersey’s Open Public Records Act, commonly known as OPRA. N.J.S.A. 47:1A-1 et seq. OPRA permits requests to government entities to gain access to public records. The changes to OPRA will take effect on September 3, 2024. While the bill made changes to many aspects of OPRA, several amendments are very significant.

One change to OPRA is an expanded definition of “personal identifying information.” The amendment now protects birth dates, email addresses, and home addresses. Custodians should carefully analyze documents prior to production to ensure any identifying information has been redacted.

In addition, when an agency assesses a special service fee, now the presumption is that the fees or charges presented by the custodian are reasonable. If a requestor objects to the fees or charges, the requestor carries the burden of demonstrating that the fees or charges are unreasonable.

If a requestor demands records that are over 24 months old, the custodian need not provide immediate access. OPRA also entitles custodians to reasonable extensions to any response deadlines so long as they notify the requestor within seven business days.

OPRA also tightened requirements for requestors that seek email, text message, and social media correspondence. The requestor must now specify individuals by name or job title, specify the subject matter, and specify a reasonable time period for the custodian to conduct the search. This provision prevents requestors from making overly broad and burdensome demands.

OPRA now requires agencies to make records publicly available, in their unabridged form, on the agency’s website. When a requestor demands records that are available on their website, the agency is required to direct the requestor to their website. The agency must provide the requestor with instructions to obtain the requested records from their website.

Finally, OPRA strikes down on requestors that harass public agencies or seek records with the intent to substantially interrupt the performance of government function. The Court may issue protective orders limiting the number and scope of requests the requestor may make.

The Impact on Schools: Governor Murphy Amends OPRA

By: Lindsay S. Romeo, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

On June 5, 2024, Governor Phil Murphy signed legislation (S-2930) which amends New Jersey’s Open Public Records Act, commonly known as OPRA. N.J.S.A. 47:1A-1 et seq. OPRA permits requests to government entities to gain access to public records. The changes to OPRA will take effect on September 3, 2024. While the bill made changes to many aspects of OPRA, several amendments will directly impact public school districts.

One notable change to OPRA is an expanded definition of “personal identifying information.” The amendment now protects birth dates, email addresses, and home addresses. Custodians should carefully analyze documents prior to production to ensure any identifying information has been redacted.

In addition, when an agency assesses a special service fee, now the presumption is that the fees or charges presented by the custodian are reasonable. If a requestor objects to the fees or charges, the requestor carries the burden of demonstrating that the fees or charges are unreasonable.

If a requestor demands records that are over 24 months old, the custodian need not provide immediate access. OPRA also entitles custodians to reasonable extensions to any response deadlines so long as they notify the requestor within seven business days.

OPRA also tightened requirements for requestors that seek email, text message, and social media correspondence. The requestor must now specify individuals by name or job title, specify the subject matter, and specify a reasonable time period for the custodian to conduct the search. This provision prevents requestors from making overly broad and burdensome demands.

OPRA now requires agencies to make records publicly available, in their unabridged form, on the agency’s website. When a requestor demands records that are available on their website, the agency is required to direct the requestor to their website. The agency must provide the requestor with instructions to obtain the requested records from their website.

Finally, OPRA strikes down on requestors that harass public agencies or seek records with the intent to substantially interrupt the performance of government function. The Court may issue protective orders limiting the number and scope of requests the requestor may make.

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.”

Attorney’s Fees Denied in OPRA Case for Failure to Cooperate

On April 24, 2017, the New Jersey Superior Court, Camden County, denied a plaintiff’s request for attorney’s fees under the Open Public Records Act (“OPRA”) in the case Grieco v. Borough of Haddon Heights. The Court determined that the public entity inadvertently omitted a record in response to the plaintiff’s OPRA request and that she made no attempt to cooperate with the agency to acquire the missing document prior to initiating a formal lawsuit.

Heather Grieco submitted an OPRA request to the Borough of Haddon Heights (“Borough”) seeking notices to newspapers for all council meetings from November 1, 2014 to April 1, 2015. Within the seven-day deadline imposed by OPRA, the Borough provided documents responsive to Grieco’s request, which included records relating to council meetings held in 2015. However, the Borough did not include proof of publication for the meetings held in 2014.

Two weeks after the Borough’s initial response, Grieco filed suit in the New Jersey Superior Court alleging violations of OPRA and seeking attorney’s fees. Upon receipt of the lawsuit, the Borough became aware for the first time that it had omitted one of the documents requested by Grieco. Within three days of learning of this omission, the Borough provided the missing document.

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. In addition, the Court applies a fact-sensitive inquiry in evaluating the government agency’s reasonableness and motivations behind such conduct.

In this case, the Court determined that the Borough inadvertently omitted one responsive document to Grieco’s OPRA request and only became aware of the omission upon service of the lawsuit. The Court found it significant that almost immediately after the Borough discovered the error, it provided the missing document. Further, the Court determined that the Borough did not act with malice or ill will, as the error was caused by a change in personnel handling the response to the OPRA request. Specifically, the Borough employee who initially started processing the response transferred the task to another employee because the former employee suddenly needed to attend to a critically ill spouse.

Further, the Court considered that Grieco made no attempt to obtain the missing document from the Borough after receiving the initial records and instead resorted to litigation. The Court explained that the cooperative spirit of OPRA requires some sort of follow up communication by the requestor to the public entity to notify it of a mistake.

Fortunately for the Borough, its good faith efforts to comply with OPRA precluded the requestor from obtaining attorney’s fees through litigation.

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