Case Alert: Ciolek v. Township of Roxbury - In Camera Review of Records and Who Should Be the Plaintiff

On July 26, 2023, the Appellate Division decided Ciolek v. Township of Roxbury, Docket No. A-3729-21. This is an unpublished decision. However, as is so often the case with OPRA cases, it's useful to discuss unpublished cases because of the relative dearth of published authority and because of the practice lessons they might contain.

First, Ciolek reinforces that law firms are proper plaintiffs in OPRA cases if they made the request, although we add that as long as the occasional defendant argues that they are not, it’s a distraction generally worth avoiding by filing the OPRA request and the verified complaint in the name of the client. Second, it is probably best practice for courts to conduct in camera reviews of records, and for the parties to ask for that review before the return date of the order to show cause.

Here, the records requestor, who was an attorney, requested documents relating to an investigatory stop of two individuals, who were also plaintiffs in two actions in which the attorney-requestor represented “multiple defendants in the two actions.” Roxbury provided a police report, but did not produce two related investigatory reports. Here, we note that throughout the opinion, reference is made to “two investigatory reports,” but when first describing the records withheld, the Court only describes one record, “a February 3, 2019 investigatory report[.]"

The requestor filed a denial of access complaint in Superior Court, seeking access to the two reports. The complaint was filed in the name of his law firm, but apparently in response to an objection or argument filed by Roxbury, the requestor filed an amended complaint that substituted himself for his firm. The records custodian argued that the two investigatory reports were exempt as criminal investigatory records, and the trial court agreed. The requestor appealed.

On appeal, the requestor argued that information within the two investigatory reports that was disclosable under N.J.S.A. 47:1A-3(b) should have been disclosed to him.  We have previously discussed 3(b) information here and here. The trial court did not perform an in camera review of the reports, and the reports were not provided to the Appellate Division for review, either. Thus, the Appellate Division was not able to perform its own review, and remanded the matter for the trial court to review the two investigatory reports in camera and make appropriate findings.

In a footnote, the Court also noted its “disagreement” with the records custodian’s argument that the law firm lacked standing to file a denial of access complaint, citing Underwood Properties, LLC v. Hackensack, 470 N.J. Super. 202 (App. Div. 2022), because lawyers acting on behalf of clients have standing to sue for access when furthering the interest of the client.

Nonetheless, it is probably a better (or maybe best) practice for the OPRA request to be made explicitly on behalf of the client, and for the client to be named as the plaintiff.