Top OPRA Legal Developments of 2017

As we reflect on the New Year, we are looking back at the public law issues that impacted New Jersey municipalities in 2017. The past year brought a number of legal developments involving the New Jersey Open Public Records Act (OPRA). Below is a brief summary: Dash Cam Footage: In North Jersey Media Group, Inc. v. Township of Lyndhurst, the Supreme Court of New Jersey held that the public has the right to access recordings from the mobile video recorders (MVRs) in police vehicles under the common law right of access. Notably, the court determined that MVR recordings fall within OPRA’s criminal investigatory records exception, citing that the Attorney General has not issued a directive relating to the use of dash-cams. Nonetheless, the New Jersey Supreme Court ultimately concluded that the public’s substantial interest in disclosure of dash cam recordings warranted the release of those materials under the common law right of access. Declaratory Judgement Actions: In In the Matter of the New Jersey Firemen’s Association Obligation to Provide Relief Applications Under the Open Public Records Act, the Supreme Court of New Jersey held that OPRA limits the right to institute a suit to a requestor whose public records request has been denied. However, its decision suggested that before an OPRA request is denied, an agency has a justiciable controversy that could potentially resolved by a declaratory judgment action. OPRA Requests Subject to OPRA: In Scheeler v. Office of the Governor, the Appellate Division held that  OPRA requests are themselves subject to disclosure under the statute. In so ruling, the appeals court rejected the argument that such OPRA requests lack the required specificity and would constitute an invasion of privacy. Volunteer Fire Company Subject to OPRA: In Justin D. Lamb v. Lavallette Volunteer Fire Company, No. 1, et al., a New Jersey court held that the Lavallette Volunteer Fire Company No. 1 was subject to OPRA because it “is performing an important governmental function, firefighting; it is funded in part by the public purse, and the governing body to some degree exercises authority over the Fire Company.” In the absence of a designated records custodian, the court held that the borough’s clerk was responsible for handling the OPRA request. OPMA/OPRA Bills: Legislation to amend OPRA and the Open Public Meeting Act remains under consideration by the New Jersey Legislature but has failed to advance. Senate Bill No. 1045 provide greater public access to meetings of public bodies and to information about those meetings. Among other provisions, it also clarifies and expands the public’s right to receive notice of meetings of public bodies, to be present at such meetings and, under certain circumstances, to be heard at meetings, as well as to have access to minutes of meetings. The bill also extends the scope of the act to apply certain of its provisions to subcommittees and to include certain quasi-governmental entities. Senate Bill No. 1046 expands and clarifies various definitions and makes changes to the Government Records Council. It specifies that the fines imposed pursuant to OPRA cannot be paid out of public funds. It also requires the State to create a public finance website and establish the New Jersey Local Public Finance Internet Website Development Program to provide advice and technical assistance to units of local government that elect to create a searchable local public finance Internet website. To learn more about the OPRA issues discussed above, we encourage you to click through to the relevant blog post. You can also contact a member of Scarinci Hollenbeck’s public law practice with any questions regarding how the developments may impact your municipality or agency.