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In another action brought by John Paff, a “self-proclaimed open government activist” who has pursued litigation to secure government documents pursuant to the Open Public Record Acts (“OPRA”) in several instances, a Superior Court judge held that Paff was entitled to the documents he sought as well as attorneys’ fees associated with the action.
By way of the action, captioned Paff v. Bergen County, 2014 N.J. Super. Unpub. LEXIS 2455 (Law Div. Oct. 16, 2014), Paff sought un-redacted versions of internal affairs reports maintained by the Bergen County Sherriff’s Office (“BCSO”) concerning complaints against the corrections officers at the Bergen County Jail. BSCO produced the reports in response to an OPRA request filed by Paff. However, the copies of the reports the BCSO provided to Paff were redacted to withhold the names of the complainants and the employees against whom the complaints were made. Paff, contending that these redactions were improper, sought relief from the Superior Court as provided for by OPRA.
After detailing the history of OPRA and discussing the overriding policy of OPRA favoring the public’s access to government records, the Court considered BSCO’s arguments supporting its position that production of the un-redacted reports was not required under OPRA. The Court explained that, in order for the documents to be subject to disclosure under OPRA, they must first fall within the definition of “government records” within OPRA and, secondly, not be subject to any of the enumerated exceptions within the statute. Given that BCSO did not argue that the reports were not government records, the issue before the Court was whether or not the redacted information fell within one of the 21 categories of information exempted from OPRA.
In support of its position that the reports are exempt from disclosure under OPRA, BSCO argued that they are confidential pursuant to the “Attorney General Guidelines” which had been adopted by BSCO and that they are confidential because they include certain “sensitive information” excluded from OPRA. The Court rejected both arguments, principally because BSCO provided no evidence that the Attorney General Guidelines form the basis for an OPRA exception and similarly provided no evidence that the documents contained the sort of sensitive information excluded from disclosure by the statute. The Court noted that simply identifying the statutory exceptions on which a government agency relies for non-disclosure is not sufficient. Rather, the agency must provide the “necessary proofs” in support of non-disclosure. The Court similarly rejected BSCO’s arguments that the redaction was appropriate because BSCO articulated a reason for the redaction in its opposition to Paff’s legal action and that regulations concerning public access to internal affairs documents provided a basis for non-disclosure. The Court held that articulating a reason for redaction in its opposition papers was not sufficient and that, again, BSCO had provided no evidence as to the sufficiency of the redactions.
The Court also found that disclosure was appropriate under the common law right of public access, which applies when the documents are common-law public documents, the person seeking the documents has an interest in the subject matter, and the citizen’s right to access outweighs the State’s interest in preventing disclosure. In determining which interest prevailed in this case, the Court relied in the six factor test articulated in Loigman v. Kimmelman, 102 N.J. 98 (1986). Those factors include the extent to which disclosure would impede agency functions by discouraging citizens from providing the government with information and the possible effects of disclosure on the individual who provided the requested information. The Court held that the six Loigman factors weigh in favor of disclosure as BCSO provided no evidence of how disclosure of the requested information would impede BSCO’s functions or discourage citizens from reporting police misconduct. In sum, the Court found that Paff should have been provided the un-redacted reports under both OPRA and common law.
The Court also granted Paff’s application for attorneys’ fees, as permitted by OPRA, concluding that Paff satisfied the test for an award of fees under the statute which requires that the party seeking documents prevail before the court.
The attorneys at Lieberman & Blecher, P.C. regularly serve OPRA requests on public entities in the course of assisting clients with environmental legal issues throughout New Jersey. Our team will be closely following the developments in in this area of the law. If you have a question about access to government records, contact our attorneys by clicking here.
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