A Capehart Scatchard Blog

Appellate Division Finds Willful and Deliberate Violation of OPRA

In recent months, the New Jersey courts have issued several decisions regarding a public entity’s obligations under the Open Public Records Act (“OPRA”). In case you missed them, check out our articles from June 20 and June 27 regarding recent OPRA cases. This week’s article will focus on Gordon v. City of Orange in which the New Jersey Appellate Division on June 23, 2017 reversed and remanded the Government Records Council’s (“GRC”) ruling that the City did not knowingly and willfully violate OPRA by failing to respond to a request for records seeking disability insurance payments made to the City Clerk and records related to his sick leave.

On June 25, 2013, Katalin Gordon submitted an OPRA request to the City seeking all records of disability insurance payments received and sick days accumulated by the City Clerk for the time period July 1, 2010 to June 5, 2013. The City denied her request, claiming that the records involved ongoing litigation which prevented the City from disclosing them. Thereafter, Gordon requested the City to provide specific OPRA references supporting its position. The City responded essentially that Gordon would need to submit a new OPRA request because her initial one did not seek an OPRA reference. Gordon denied that she was obligated to do so.

After the City continued to deny Gordon’s request, she filed a complaint with the GRC. Gordon claimed that the City was required to provide specific legal justification for the denial and sought disclosure of the records. Gordon also requested that the GRC rule that the City’s conduct amounted to an intentional and deliberate violation.

On April 29, 2014, the GRC issued an interim order determining that the City must disclose the records requested by Gordon regarding the Clerk’s disability insurance payments and accumulated sick days. The GRC criticized the City for failing to set forth a specific lawful basis for denying the requests contrary to its burden under OPRA. On May 9, 2014, the City certified to the GRC that it complied with the interim order. On September 30, 2014, the GRC issued a final agency decision affirming the interim order. The final order also acknowledged the City’s failure to provide a specific legal basis for the denial and the City’s failure to prove that the denial was authorized by law. However, the GRC disagreed with Gordon and found that the City’s failures were neither willful nor deliberate.

Gordon then appealed the GRC’s final agency decision to the Appellate Division, which agreed with Gordon. The Appellate Division held that the City’s denial of her OPRA request was wilful and deliberate. In reaching its decision, the Appellate Division found that the City’s purported reason for denying the OPRA request due to “ongoing litigation” was false, as there was no litigation at the time Gordon made the request. Further, the City could not convince the Appellate Division that it mistakenly mischaracterized an ongoing investigation as litigation. The Appellate Division also reasoned that notwithstanding an investigation, OPRA still required the disclosure of salary and payroll records.

OPRA permits the GRC to impose civil penalties on a public entity that unreasonably denies access to records in a knowingly and willful manner. Having found the City’s actions to be a willful and deliberate denial under OPRA, the Appellate Division remanded the matter to the GRC to determine an appropriate penalty.

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Sanmathi (Sanu) Dev

About the Author

About the Author:

Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA. In connection with these representations, she is experienced in handling matters before State and Federal courts, including the Office of Administrative Law. Ms. Dev is an experienced special education litigator and defends school districts in due process hearings from inception through trial. In addition, she has handled matters before governmental agencies, including the U.S. Office for Civil Rights and New Jersey Division on Civil Rights. Ms. Dev routinely conducts training and seminars, drafts policies and manuals, and provides strategic advice to school administrators regarding school law issues. Ms. Dev was recently recognized as one of South Jersey’s Awesome Attorneys as published by South Jersey Magazine. She is licensed to practice law in New Jersey, the District Court for the District of New Jersey and Pennsylvania.

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