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town-crier_facebookOn August 3, 2017 the NJ Supreme Court issued its opinion on, In the Matter of New Jersey State Fireman’s Association Obligation to Provide Relief Applications Under the Open Public Records Act (A-68-15)(077097).  This case involved the Fireman’s Association request to the court for a declaratory judgment regarding the Association’s obligation to provide certain documents under an OPRA request.

The Court ruled that under the Declaratory Judgment Act (“DJA”) after a public entity denies a request for records under an OPRA, the public entity could not seek a declaratory judgment affirming the denial.  The Court reasoned that there was no active controversy once a public entity makes the decision to deny the OPRA request and under the DJA an active controversy is required in order to obtain a declaratory judgment.

The Court’s reasoning then begs the question – can a public entity seek a pre-denial declaratory judgment for an unsettled issue?  To this, the Court succinctly answers, “We do not reach the question of whether a public entity may file a pre-denial declaratory judgment action when confronted with an unsettled question that has not been litigated before and that implicates OPRA’s privacy prong, N.J.S.A. 47:1A-1.”  In a concurring opinion, which has no precedential value, Justice Albin took the additional step to say that under no circumstance, pre-denial or otherwise, should a public entity by able to receive a declaratory judgment when OPRA concerns are involved.

In the League’s view, the downside to not allowing declaratory judgments on unclear OPRA issues is that public entities are then at the will of the aggrieved requestor to decide whether or not to seek further clarification from the courts or the Government Records Council.  More importantly, should clarification after a denial of a request be sought the public entity is put at risk of needing to pay for the attorney fees for the aggrieved requestor.  The public entity would be responsible for attorney fees even if the denial of a request was due to ambiguity in the OPRA law while the entity sought to protect citizen privacy.

The positive take away from the case is that the Court recognizes the two key competing interests found in OPRA – disclosure, and protection of privacy interest.  In a somewhat rare move, the Court took the opportunity to overturn the Appellate Divisions decision to require disclosure of financial relief checks rather than remand the issue back down for further review.   In this case, the Court ruled that because of public policy reasons the citizen privacy concerns outweigh the need for disclosure of certain sensitive financial documents and therefore the nondisclosure by the Fireman’s Association was proper.  The Court ruled on the side of privacy in regards to both the OPRA requests and the request under the common law.  The Court did this using the existing factor tests outlined in Burnett v. County of Bergen for OPRA and Loigman v. Kimmelman for the common law right to know.

Overall the League sees this ruling as a step in the right direction after a slew of OPRA rulings seemingly eroded citizens’ reasonable expectation of privacy.  Additionally, this ruling addresses certain public policy concerns where circumstance may arise where a citizen could be hesitant to seek assistance from public entities, out of fear of their information being subject to disclosure either under OPRA or the common law.  The League sees this as a signal from the Court to the lower courts, that privacy interests should be more carefully considered when ruling on issues of disclosure.

Contact: Frank Marshall, Esq., League Staff Attorney, fmarshall@njslom.org or 609-695-3481 x137.

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