New Jersey Courts Hands Victories to Open Government Records Advocates

Over the past month, the New Jersey courts have handed down several rulings clarifying the scope of New Jersey’s Open Public Records Act, or OPRA.   The rulings have resulted in several significant victories for advocates of more access to public records.

In Paff v. Galloway Township, the New Jersey Supreme Court addressed the scope of a municipality’s obligation to disclose electronically stored information.  The plaintiff had requested specific information fields from emails sent between the Township Clerk and Chief of Police, including “sender,” “recipient,” “date” and “subject” over a two-week period.    The Supreme Court found that this information about the emails—in legal parlance, “metadata”— is a government record under OPRA and must be produced.  Although this may impose some burden on a municipality, the Court point to the ability under OPRA to charge a service fee where the records requested require “a substantial amount of manipulation or programming of information technology.”

In North Jersey Media Group, Inc. v. Township of Lyndhurst, the New Jersey Supreme Court addressed the issue of public access to criminal investigatory records associated with the shooting of an individual by police following a high-speed chase.  The Court ultimately ruled that the plaintiff was entitled to disclosure of unredacted Use of Force Reports under OPRA and dash-cam recordings of the incident under the common law, but not to investigative reports, witness statements, and similarly detailed records while the investigation remained ongoing.

The next case, in re New Jersey Fireman’s Association Obligation to Provide Relief Applications Under the Open Public Records Act, involved the polar opposite of the typical OPRA case.  In that case, the question was whether, after a public entity denies a citizen’s record request, the public entity may institute a court action to obtain a judgment from the court declaring the record to not be subject to disclosure.  The Court ultimately ruled that this procedure may be proper in some instances, but under the facts of the case, since the public entity had already denied the OPRA request, only the requestor may file an action to compel the disclosure.

In North Jersey Media Group v. State of New Jersey Office of Governor, a case stemming out of the “Bridgegate” scandal, New Jersey’s Appellate Division held that the court has the authority under OPRA to impose civil penalties for knowing and willful violations of OPRA, and remanded the case for a ruling on whether certain individuals in the Governor’s office intentionally violated OPRA.

In Verry v. Franklin Fire District No. 1, the Appellate Division held that a local a fire department should be considered an “instrumentality” of the larger fire district, and is therefore a public agency required to comply with OPRA.

For more information, please contact Kathleen Barnett Einhorn, Esq., Chair of the Firm’s Complex Commercial Litigation Group, at keinhorn@genovaburns.com or Jennifer Borek, Esq., Partner in the Complex Commercial Litigation Group, at jborek@genovaburns.com.

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U.S. Supreme Court Clarifies Standard for Awarding Attorneys’ Fees to Successful Copyright Litigants.

On June 16, 2016, the U.S. Supreme Court in a unanimous decision, clarified the standard for awarding attorneys’ fees under the Copyright Act.

This is the second time the case of Kirtsaeng v. John Wiley & Sons, Inc, No. 15-375, has come before the Supreme Court.  Kitrsaeng was sued by respondent John Wiley & Sons, Inc., a textbook publisher. Kirtsaeng won the first Supreme Court appeal, which resulted in a clarification of the “first sale” doctrine.  Having prevailed, Kirtsaeng sought more than $2 million in attorney’s fees under § 505 of the Copyright Act.  The Second Circuit affirmed the district court’s denial of this request, finding that Wiley had taken reasonable positions throughout litigation, and awarding fees would not serve the Copyright Act’s underlying purpose—enriching the public through access to creative works.

Although the Copyright Act gives the district court discretion to award attorneys’ fees, the Supreme Court emphasized that the discretion must be exercised under set standards to increase the predictability of the result for both plaintiffs and defendants.

The Supreme Court noted that the Second Circuit appeared to focus solely on the objective reasonableness of the parties’ litigation positions, which is an important factor, but not the only factor to be considered.   By focusing too narrowly on the parties’ litigation positions, a court may lose sight of the goals of the Copyright Act. The Court acknowledged the fundamental nature of litigation, that “both plaintiffs and defendants can (and sometimes do) make unreasonable arguments,” a fact which “favors plaintiffs because a losing defendant will virtually always be found to have done something culpable.” Slip op. at 9 (emphasis in original).

In addition to the objective reasonableness of the parties’ litigation positions, the Supreme Court held that lower courts should address “a range of considerations,” including, frivolousness, motivation, objective reasonableness, and the need in particular circumstances to advance considerations of compensation and deterrence.  “Although objective reasonableness carries significant weight, courts must view all the circumstances of a case on their own terms, in light of the Copyright Act’s essential goals.” Slip op. at 11.

Because it was unclear if the Second Circuit (or district court) considered all of these factors, the Supreme Court vacated and remanded, emphasizing, however, that it was not suggesting that any different outcome would necessarily occur in this case.

For more information regarding the Copyright Act or Kirtsaeng v. John Wiley & Sons, Inc, please contact Kathleen Barnett Einhorn, Esq., Director of the firm’s Complex Commercial Litigation Group at keinhorn@genovaburns.com, or Jennifer Borek, Esq., a Partner in the Complex Commercial Litigation Group at jborek@genovaburns.com.

 

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Recent Supreme Court Decision Expands Freedom of Speech Rights for Those in Common-Interest-Communities

The New Jersey Supreme Court’s December 3, 2014 decision in Dublirer v. 2000 Linwood Avenue Owners, Inc., et al., extended the free speech rights of those living within private common-interest communities relating to political speech and the right to distribute political materials therein.

In Dublirer, the Court addressed an action filed by a resident in a high-rise private cooperative apartment building (the “Co-op”) against the Co-op’s board of directors (the “Board”) who prevented the resident from distributing leaflets under his neighbors’ doors criticizing the Co-op’s governance and promoting his own candidacy for the Board. The Board’s rule banned the distribution of all written materials “anywhere upon the premises without written authorization of the Board of Directors.”

The Court noted that an essential element of living within a co-op community is the residents’ agreement to be bound by the co-op’s by-laws and rules. However, while the Board’s stated purpose for barring the distribution of such written materials was “to preserve the residents’ quiet enjoyment of their apartment and to cut down on litter pollution,” the Court found that the residents’ rights in speaking out about the governance of their community outweighed the “minimal intrusion [of] when a leaflet is placed under a neighbor’s apartment door.” The residents of the Co-op were not outsiders, and thus had both property and free speech rights within the Co-op. The Court developed a test for such restrictions, holding that courts “should focus on the purpose of the expressional activity undertaken in relation to the property’s use, and should also consider the general balancing of expressional rights and private property rights.”

The Dublirer Court found that the resident’s leaflets were akin to political speech, thus affording it the highest Constitutional protection. The Court took into account the potentially intrusive nature of the resident’s leaflets, noting that here, the resident “did not seek approval to use a bullhorn or a loudspeaker, or to erect a large sign in the lobby,” and that “residents could simply ignore or throw away any literature placed under their doors.” In considering the reasonableness of the Board’s restriction, the Court found no “convenient, feasible, and alternative means” for engaging in the same speech, finding that the resident had sought “the most direct and least expensive way possible,” and that there were not substantially similar alternatives for communicating the same message to his neighbors.

The Court held that “[s]peech about matters of public interest, and about the qualifications of people who hold positions of trust, lies at the heart of our societal values,” and thus is entitled to protection whether or not that speech involves those who hold positions of trust within private common-interest communities.

Similar common-interest communities, such as condominium associations, should be aware of the Dublirer holding and potential claims by residents against their boards. The Court’s characterization of certain types of resident speech as protected political speech requires particular focus, as the Court stated that such should be afforded the greatest protection. However, the Court did not find that a board of directors in common-interest communities could never impose any speech restrictions, noting that the Board could have adopted “reasonable time, place, and manner restrictions to serve the community’s interest.” Such restrictions, however, must be designed to promote the quiet enjoyment of the residents of the community, “without unreasonably interfering with free speech rights.” Thus, in designing by-laws and house rules related to speech, boards must take into account the practical effect of any such proposed limitations on speech and the effect it would have on the residents, paying particular attention to the availability for substantially similar (and cost effective) mechanisms for the residents to accomplish a similar result.

For more information regarding the firm’s Complex Business Litigation Program, please contact Kathleen Barnett Einhorn, Director of the Complex Commercial Litigation Practice Group, at keinhorn@genovaburns.com.

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