OPRA Requests Can be Requested Under OPRA

Scheeler v. Office of the Governor, 448 N.J. Super. 333 (App. Div. 2017).  In these consolidated appeals, plaintiffs each sent requests under the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (“OPRA”), to various public agencies.  Those requests all sought copies of other OPRA requests made of those agencies within specified time frames.  The agencies resisted, to varying extents.  Plaintiffs sued under OPRA.  Defendants all relied primarily on Gannett N.J. Partners, LP v. County of Middlesex, 379 N.J. Super. 205 (App. Div. 2005), which contained language suggesting that requests for access to third-party OPRA requests are improper.  The Law Division found that language in Gannett to be dicta, and ruled in favor of plaintiffs in each cases.  Defendants appealed, and the Appellate Division, applying the de novo standard of review, today affirmed.  Judge Yannotti wrote the panel’s opinion.

Defendants conceded that the OPRA requests sought were “government records” under OPRA.  “Government records” are precisely the focus of OPRA, as Judge Yannotti explained in discussing the background of that statute.  Defendants did not cite any source of law that makes OPRA requests confidential.  Instead, they argued that plaintiffs’ requests for documents were not specific enough.  Judge Yannotti disagreed.  “[P]laintiffs sought access to OPRA requests by other persons, which were received by defendants within specific time frames.  Thus, plaintiffs requested the documents with sufficient clarity.”

The bulk of the opinion addressed defendants’ argument that Gannett bars requests for OPRA requests by others.  Judge Yannotti carefully laid out the facts and circumstances of Gannett, and concluded, as had the Law Division, that the language on which defendants relied was dicta.  Though State v. Rose, 206 N.J. 141, 183 (2011), stated that “matters in the opinion of a  higher court which are not decisive of the primary issue presented but which are germane to that issue … are not dicta, but binding decisions of the court,” Judge Yannotti found that the subject language of Gannett was not germane to the issue there.

“Furthermore, in Gannett, the court did not definitively state that the OPRA request was improper.”  Thus, Gannett was not “a binding decision that that all requests for access to third-party OPRA requests are improper and government agencies can deny citizens access to all such requests.”

There are varying views as to the effect of dicta, as discussed here.  The Appellate Division’s decision today was that the language in its prior opinion in Gannett did not bind the Law Division, even though Gannett was the ruling of a higher court.  But that issue was almost academic.  Once the present case came before the Appellate Division, today’s panel was free to disagree with Gannett if it chose, since (unlike in the Third Circuit) one Appellate Division panel is permitted not to follow a decision of a prior Appellate Division panel.  Had Judge Yannotti found that Gannett did bind the Law Division, a ruling today that went against Gannett would have given defendants sound grounds for Supreme Court review, since conflicting Appellate Division decisions are one of the grounds for certification in the Supreme Court.  Defendants may still seek Supreme Court review, but now they cannot assert as a basis for such review that today’s ruling squarely conflicts with Gannett.