Being a records custodian under the New Jersey Open Public Records Act may be one of the toughest jobs in the public sector these days.  For the third time in two weeks, the courts have ruled on another complicated OPRA case, this time mandating access to reports about inmate suicides.  Unfortunately for the public sector and its taxpayers, this also triggers the payment of “prevailing party” attorney fees.  It is simply too costly for a custodian to guess wrong.   As OPRA counsel to school districts, municipalities, and other government agencies, our OPRA team continues to help clients forge a path through these legal minefields.

Today’s question – Is a requestor entitled to incident reports for suicides and suspicious events inside state correctional facilities when those reports are filed with the individuals’ medical information?  The requestor defined “suspicious” to include prisoner suicides and drug overdoses.  The custodian, believing the records were confidential and exempt as inmates’ medical and psychiatric records, denied the request.  Plaintiff argued that they were incident reports and not medical records and, therefore, subject to disclosure.  Was this simply semantics?  Unfortunately, no.  The trial judge agreed with the requestor and mandated the release of the materials.  Equally important, in the interest of justice, the court waived the 45-day time limit to challenge the agency’s denial.  The time limit should have barred the action altogether.

The custodian only appealed the trial court’s order to release the documents.  The Appellate Panel also found a distinction between a request for an incident report and a request for medical records confirming medical records would be exempt from disclosure. The custodian should have released the incident reports with the personal identifying information redacted.  These redactions would have prevented any identity concerns and fulfilled the purpose of OPRA to make records available for inspection.  By creating this distinction between a medical record and an incident report filled with medical information, another public entity is now required to pay considerable counsel fees.  Custodians are again left shaking their heads.

One thing is certain, the courts will continue to interpret the Open Public Records Act on an almost weekly basis.  The failure to stay on top of this constantly developing and evolving area of law could pose an expensive proposition for public agencies.

For more information on this issue or other public records questions, please contact Parker McCay’s OPRA team.

The content of this post is for informational purposes only and should not be construed as legal advice or legal opinion. You should consult a lawyer concerning your specific situation and any specific legal question you may have.