Presented by the Public Entity and Civil Rights Litigation Practice Group

Legal Updates for NJ Public Entity & Civil Rights - May 2018

May 1, 2018

The Open Public Records Act

By Matthew J. Behr, Esquire

New Jersey courts have long recognized the interest of the public in gaining information. In enacting the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1, et seq., the legislature codified years of case law that held that the public has the right to information and documents maintained by a public entity and that secrecy undermines the faith of the public in government. Despite this policy, the courts have also limited the unfettered release of information and documents in order to protect various privacy rights of individuals and public entities. Courts have struggled with this balancing test for years and, more often than not, apply this balancing test on a case-by-case basis.

In North Jersey Media Group, Inc. v. City of Clifton, Docket No A-1469-16T4 (App. Div. January 11, 2018)the Appellate Court addressed the deliberative process exception. The City of Clifton transitioned from a biweekly to a semi-monthly payroll system. By doing so, the employees argued that they would have a shortfall in their annual salaries. Clifton hired an accounting firm to analyze the issue and provide the consequences of changing when to pay employees. The accounting firm prepared a number of draft reports and then presented the final report to Clifton’s officials and attorneys. Ultimately, Clifton issued special payroll checks to make up for the shortfalls. However, some employees still believed they were owed money and grieved the issue.

North Jersey Media Group, the owner of various print and web-based news organizations, submitted a request to the City of Clifton for documents pursuant to OPRA. The request was essentially for all of the drafts and the final audit report. The Custodian of Records did not provide any of audit reports, citing the deliberative process privilege. The deliberate process privilege allows government entities to “withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of a process by which [its] decisions and policies are formulated.” The court determined that the drafts and the final report were pre-decisional and contained opinions, recommendations and advice.

Moreover, the court held that the draft and final reports were also exempt from disclosure based on the work-product privilege. The court found that the draft and final reports addressed issues that would be raised in the grievances and, therefore, were work-product documents.

Based on this opinion, public entities have support for withholding reports that are generated by independent companies at the behest of the public entity to review and analyze policy changes.

In Conley v. New Jersey Department of Corrections, Docket No. A-4754-14T3 (January 12, 2018), a pro se inmate requested monthly remedy form statistical reports and monthly remedy logs. The Custodian of Records responded to the request and informed the inmate that the DOC utilized a new database that no longer generated the monthly reports. The Government Records Council upheld the denial, and the inmate appealed to the Appellate Division.

The Appellate Division reversed and found that public entities should not erect technological barriers to deny access to government records that were previously available under OPRA. Thus, public entities should be aware of the continual obligation under the OPRA when purchasing new technology and software. They cannot simply state that they no longer maintain the record.

In Libertarians for Transparent Gov’t v. Gov’t Records Council, Docket No. A-5563-15T4 (January 26, 2018), the plaintiff sought draft minutes to a public body’s meeting prior to approval and adoption pursuant to OPRA. The Appellate Division held that unapproved minutes were deliberative material and exempt from OPRA’s disclosure requirements as they were preliminary documents subject to revisions. It is not until the minutes are approved do they become public record. Public entities should be cautious in releasing any minutes other than the actual minutes adopted by the public body.

Custodian of Records are consistently bombarded with OPRA requests pertaining to police matters and requests for investigation files. In Lynn v. Middlesex County Prosecutor’s Office, Docket NO.: A-2722-16T2 (February 16, 2018), the plaintiff requested the entire homicide investigation along with photographs. The Records Custodian denied the request because the documents were considered criminal investigatory records and the photographs were not considered public records. The denial of the documents was affirmed. Of importance, the Appellate Division found that the OPRA request was invalid because it made a blanket request for every document a public agency has on file for a particular matter. The court further stated that the OPRA requires the request to specifically describe the document. Thus, Records Custodians must analyze each request, and if the request simply requests “all” documents, it may be grounds to deny such a request.

Finally, public entities must be always mindful that settlements are subject to OPRA in New Jersey state courts. However, the issue in The Evening Journal Assoc., Publisher of the Jersey Journal v. City of Bayonee, L-2103-17 (Law Div. 2018) was whether settlement documents in a federal court matter were subject to OPRA. The underlying federal case involved allegations by the plaintiffs that their civil rights were violated by police officers. Two of the plaintiffs were minors and one was disabled. The Records Custodian denied the OPRA request for the settlement documents because the documents were sealed under a federal court order, made jointly by the plaintiffs and the defendants.

When the matter was first presented to the court, the court held that a state court judge does not have the authority to overturn or circumvent a federal court order. Thus, the application was denied. However, the court directed the public entity to move before the federal court to unseal the settlement on notice to all parties to the settlement. The public entity sought a stay of the order since their attorneys would be forced to file an application with a court that was contrary to the wishes of their client. Ultimately, the plaintiffs filed a motion to intervene in the federal court. The federal court judge granted that application and ruled that the order to seal did not encompass the actual settlement agreement. Because the document was not sealed, the plaintiffs were entitled to the document.

Public entities, therefore, must realize that settlements in federal court most likely will be subject to OPRA disclosure. However, if the settlement involves a minor, a public entity can redact the identifiers and settlement terms for the minor-plaintiffs. This is true in state and/or federal court.

Hopefully, this analysis of recent cases are helpful when an OPRA request is submitted. Always remember that you should consult with your board counsel/solicitor if you have any questions regarding the request. I am also here to provide any assistance on any OPRA request or any other legal issue you may have. You can reach me at 856.414.6048 or mjbehr@mdwcg.com.

^{The material in this law alert has been prepared for our readers by Marshall Dennehey Warner Coleman & Goggin. It is solely intended to provide information on recent legal developments, and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. To be removed from our list of subscribers who receive these complimentary Legal Updates for Employment Law, please contact mjbehr@mdwcg.com. If however you continue to receive the alerts in error, please send a note to mjbehr@mdwcg.com.}