Author: Thomas J. Cafferty
The Law Division in a to-be-published opinion in Drinker Biddle & Reath LLP v. New Jersey Department of Law & Public Safety, Division of Law, recently held that public policy does not favor access to unfiled discovery in public sector litigation under New Jersey’s common-law right of access. Plaintiff filed a complaint in lieu of prerogative writs for failure to comply with the Open Public Records Act, (“OPRA”), and the common-law right of access in refusing to provide plaintiff with copies of unfiled transcripts of expert depositions in environmental litigation brought by the State of New Jersey, Department of Environmental Protection (“NJDEP”). Because the transcripts in their entirety had not been filed with the Court, NJDEP denied plaintiff’s OPRA request on privilege and confidentiality grounds.
New Jersey courts decided a trio of cases last month that shine a spotlight on the State’s Open Public Records Act (“OPRA”), which governs the disclosure of government records when requested by members of the public. These opinions — the holdings of which are summarized below — serve as important guideposts for practitioners litigating OPRA-related matters.
On July 25, 2012, the New Jersey Supreme Court decided McGovern v. Rutgers. The Court’s ruling — which found violations of Open Public Meetings Act, N.J.S.A. 10:4-6 et seq. (“OPMA”), but no statutory remedy — highlights the need for an amendment to OPMA providing effective remedies for violations of OPMA.
On May 21, 2012, the New Jersey Supreme Court issued a corrected Opinion in W.J.A. v. D.A.. In that Opinion, the Court held that presumed damages continue to play a role in New Jersey’s defamation jurisprudence in private plaintiff cases that do not involve matters of public concern. Where a plaintiff does not proffer any evidence of actual damage to reputation, the doctrine of presumed damages permits him/her to survive a motion for summary judgment and to obtain nominal damages if successful at trial. The Court emphasized, however, that in order to receive compensatory damages, a plaintiff must prove actual harm to his/her reputation.
In Durando v. The Nutley Sun, the New Jersey Supreme Court confirmed that — absent clear and convincing evidence of actual malice — an admittedly incorrect “teaser headline” that refers readers to an accurate headline and story cannot be the basis of a defamation claim where a public figure or matter of public concern is at issue. By strictly adhering to this actual malice standard, the Court has reaffirmed the commitment of this State to protect speech regarding public figures and public matters, even erroneous speech, from the expense and chill of protracted litigation, by disposition of lawsuits at the summary judgment stage.
The Bench Bar Media Committee of the New Jersey Supreme Court (“Committee”) has adopted, and forwarded to the Supreme Court, Guidelines for the Usage of Electronic Devices in New Jersey state courts. The proposed Guidelines comprehensively address the use of Electronic Devices in the courtroom, the common areas of a courthouse and the grounds of a courthouse. If adopted by the Supreme Court, the proposal will represent a major revision to the existing Guidelines.
Last month, in Drinker Biddle & Reath, L.L.P. v. New Jersey Department of Law and Public Safety, Division of Law, the Appellate Division held that un-filed discovery in an environmental lawsuit brought by the New Jersey Department of Environmental Protection was not subject to access pursuant to New Jersey’s Open Public Records Act (“OPRA”). But the Court also found that access to such information could be compelled under the common law, depending on whether the plaintiff’s need for disclosure outweighed the State’s need for confidentiality, and remanded the matter to the trial court to conduct the appropriate balancing test.
The right of public access to information about sexual harassment claims brought against a public entity is the focus of a recent decision of the Superior Court of New Jersey, Law Division (Atlantic County). The decision illustrates the interplay between the common law right of access to government records and the New Jersey Open Public Records Act (“OPRA”), as well as the importance of making a request for a government record under both.
On November 16, 2010, the Appellate Division, in McGee v. Township of East Amwell, Dkt. No. A-1233-09T2, 2010 N.J. Super., held that emails among township officials and a former supervisor regarding an employee’s termination from employment are subject to the “advisory, consultative or deliberative” exemption to the New Jersey Open Public Records Act. Plaintiff Joan McGee had appealed the Government Records Council’s (GRC) final decision denying her request for reconsideration of the GRC’s decision that the emails were exempt from disclosure.