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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Public Records Produced Pursuant to OPRA May Not be Redacted for Irrelevancy

The New Jersey Appellate Division has recently confirmed the public’s unfettered right to access government records, regardless of whether certain information produced falls outside a specific request.

New Jersey’s Open Public Records Act (N.J.S.A. 47:1A-1 et seq.) (“OPRA”) permits members of the public to access public records maintained by government agencies, in order to ensure not only an informed citizenry but to minimize the evils inherent in a secluded governmental process.  Under OPRA, a member of the public may file a request with a public agency for a “government record”, defined as any record that has been made, received, or kept on file in the course of official business or that has been received in the course of official business.  There are 24 specific categories of documents that are exempt from production, including, deliberative materials, records within the attorney-client privilege, trade secrets or proprietary commercial or financial information, and criminal investigatory records.

Although public entities are exempt from producing confidential information, the New Jersey Appellative Division has recently ruled that custodians may not redact information they deem to be irrelevant in documents produced pursuant to an OPRA request.  In American Civil Liberties Union of N.J. v. N.J. Div. of Crim. Justice, the court addressed the issue of whether a government agency has the authority to redact admittedly responsive documents in order to withhold information the agency deems to be outside the scope of the OPRA request, and found that it could not.  The court held that if the redactions were not made pursuant to the statutorily recognized exemptions to disclose, or on a claim of confidentiality under the common law, information could not be redacted for irrelevancy.

The court noted that by redacting information deemed irrelevant, the custodian confers upon himself quasi-judicial powers which are based only on the custodian’s own notion of relevancy.  The court concluded that no legal support backs this policy. The decision, therefore, confirms that the general public has a right to access governmental records regardless of whether responsive documents to an OPRA request contain some seemingly irrelevant information.  Public agencies may not choose to withhold specific information when producing documents responsive to an OPRA request, because it deems that information irrelevant.  This, according to the Appellate Division, would push back on the very purpose of OPRA.

For more information on OPRA, please contact Kathleen Barnett Einhorn, Director of the Complex Commercial Litigation Practice Group, at KEinhorn@genovaburns.com.

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