Wins for Plaintiffs in Two OPRA Cases

Digital First Media v. Ewing Tp., 462 N.J. Super. 389 (App. Div. 2020); Bozzi v. Borough of Roselle Park, 462 N.J. Super. 415 (App. Div. 2020).

Today, Judge Sumners issued an opinion for the Appellate Division in the Bozzi case. Judge Alvarez authored the panel’s opinion in Digital First Media on Wednesday of this week. Both opinions resulted in reversals of the Law Division and wins for the plaintiffs in these Open Public Records Act (“OPRA”) cases.

Today’s case (actually, two consolidated cases) involved a plaintiff who sought access to dog license records issued by the Borough of Roselle Park and the Town of Summit. Each of those municipalities denied access, and plaintiff filed two separate lawsuits as a result. As Judge Sumners noted, the Law Division ruled that “plaintiff was not entitled to the information because his sole purpose was to solicit dog licensees to install invisible fences at their homes.” Applying de novo review, the Appellate Division today reversed that decision.

Judge Sumners observed that “government record,” as defined in OPRA, is a broad term, and that a government record is generally subject to access. He noted that there are 23 categories of documents that fall outside the definition of “government record,” meaning that the Legislature considered them confidential, but that there is no “overarching exception for the disclosure of names or home addresses contained in government records.”

“Generally, we do not consider the reason behind OPRA requests,” Judge Sumners said. “A person seeking records for commercial reasons therefore has the same right to them as anyone else. That said, government records are subject to exemption when disclosure thereof would violate the citizen’s reasonable expectation of privacy.”

The Appellate Division did “not see where the citizens in Summit and Roselle Park have a reasonable expectation of privacy in their names and addresses when they apply for a dog license. While they may not have anticipated OPRA requests such as plaintiff’s, there is no indication that this information should be cloaked within privacy protection. Indeed, people who own dogs frequently walk them in public places and ordinarily do not conceal their status.”

Plaintiff helped his own cause by representing that he intended to contact citizens only by mail, which Judge Sumners found was a less intrusive and more easily disregarded means than a telephone call or an e-mail. He also noted that the Legislature could overrule today’s decision by legislation if the Appellate Division’s result did not accord with legislative intent.

The municipalities relied on decisions of the Government Records Council (“GRC”), an informal mediation program designed to resolve disputes under OPRA, that had held that this same type of record was not accessible under OPRA. But Judge Sumners noted that OPRA itself provides that “a decision of the [GRC] shall not have value as a precedent for any case initiated in the Superior Court….” N.J.S.A. 47:1A-7(e).

The municipalities noted that two of those GRC decisions were cited in Burnett v. Cty. of Bergen, 198 N.J. 408 (2009), a key OPRA decision that pervaded today’s ruling. Judge Sumners, however, found that the Court had merely mentioned those GRC decisions to illustrate an unrelated point and “did not pass judgment on the wisdom of those rulings.”

Digital First Media involved a media request for “use of force reports” (“UFRs”). Under guidelines issued by the New Jersey Attorney General, police are required to file use of force reports “in all instances when physical, mechanical or deadly force is used during a confrontation between police personnel and a civilian.”

The request here, made by The Trentonian newspaper, involved UFRs involving a sixteen year old suspect. The Law Division denied the request on the ground that the UFRs related to a juvenile, so that access could be allowed only by the Family Part. Judge Alvarez’s opinion applied de novo review and “conclud[ed] that when police employ force against a minor charged as a delinquent, redaction of his or her name on the UFR satisfies both the public’s right to access important information regarding police conduct and a juvenile’s right to privacy.”

Judge Alvarez stated that “[b]ecause police departments are required by law to file UFRs, the public is entitled to access under OPRA” as a general matter. When juveniles are involved, Rule 5:19-2(b) and N.J.S.A. 2A:4A-60 establish a mechanism under which “in limited circumstances, …, by formal motion to the Family Part,” an “interested party” may obtain otherwise confidential records of “the court, Probation Division, and law enforcement agencies.”

The Attorney General, acting as amicus, suggested the result that the Appellate Division adopted. Judge Alvarez stated that the view of the Attorney General, who promulgated the UFR, “although not dispositive, is more than informative” and would be given “deferential consideration.”

UFRs were designed to “capture information about police conduct, not the subject—the person against whom force was used—in an abbreviated fashion. That the ‘subject’ is a minor, as opposed to an adult, does not shift the focus of a UFR, disclosure of use of force, in any way. In either instance, the need to record police conduct is the same. Deleting the subject’s name adequately protects the anonymity. The remaining information is identity neutral—and provides details that aid in assessing the reasonableness of the officer’s conduct: the subject’s gender, race, and age; whether the subject was carrying a weapon; whether the subject was injured, killed, or arrested; and the nature of any charges filed against him or her.”

Accordingly, the Law Division’s decision was reversed. The panel remanded the matter for consideration of attorneys’ fees to the successful plaintiff.