By John E. Tyrrell and Erica Witter
The Open Public Records Act (OPRA) was created to promote transparency in government decision making. See Rivera v. Union Cnty. Prosecutor’s Off., 270 A.3d 362 (N.J. 2022). OPRA broadly defines ‘government record’ to include any document “maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof,” or any record “received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof[.]” N.J.S.A. 47:1A-1.1. Although the right to disclosure is broad, OPRA contains twenty-three exemptions that impose limitations on disclosure.
On January 22, 2021, the Plaintiff/appellant John Caroff sent an OPRA request to Rutgers University athletic department seeking the All-22 film of the December 5, 2020, men’s college football game against The Pennsylvania State University. See Caroff v. Rutgers, No. A-3773-20, 2022 WL 3363911 (N.J. App. Super. Aug. 16, 2022). The All-22 film at issue was “an edited compilation of digital video recordings of the Dec. 5th [] football game.” Id. at 3. The All-22 film is used for two purposes: (1) to aid coaching staff and student athletes in evaluating and adjusting plays; and (2) to scout opposing teams. Id. at 3-4. Rutgers’s Deputy Director of Athletics noted that all Big Ten schools share All-22 films with a select group of universities though a video sharing platform. Id. at 4. Further, access to the platform is limited to participating schools and Rutgers’ right to participate in the platform is contingent upon its compliance set forth in the Big Ten video-sharing manual. Id.
Caroff requested the film to show to his thirteen-year-old daughter. Id. at 2. He believed his daughter showed skills that would lead her to becoming a successful future football analyst and wanted the All-22 film so she could acquire more experience and be a competitive candidate should she seek employment in the future as a college analyst. Id. Rutgers’ Custodian of Records, Jewell Battle denied Caroff’s OPRA request. Id. at 6. Battle informed Caroff that the All-22 film fell within OPRA’s exemptions for proprietary information and competitive advantage. Id.
On April 2, 2021, Caroff filed a complaint against Rutgers University and Jewell Battle, seeking disclosure of the All-22 film under OPRA and common law right of access. Id. at 7. Caroff emphasized that he was not interested in commercializing or distributing the All-22 film; he simply wanted to use the video for educational purposes. Id. at 8. After hearing oral arguments, the trial court held: (1) OPRA’s proprietary-information exception applied because Rutgers’ distribution of the film was not indiscriminate; (2) the competitive-advantage exemption precluded disclosure because requiring disclosure under OPRA would put Rutgers at a significant disadvantage amongst its opponents; and (3) the All-22 film was subject to copyright protection based on the intentional limited distribution. Id. at 8-10. Regarding Caroff’s common law right to access claim, the trial court held that Caroff’s interests, while commendable, did not supersede Rutgers’ interest in limiting access to its All-22 film. Id. at 11.
The Appellate division of the New Jersey Superior Court affirmed the trial court’s ruling. On appeal Caroff argued the All-22 film was not exempt from disclosure under OPRA or federal copyright law.[1] Id. The Appellate Court disagreed. Id. at 15. The Appellate Court noted that if a document falls within one of the twenty-three OPRA exemptions, it is not a government document subject to disclosure. Id. at 12-13. In its decision to affirm the trial court’s ruling, the Appellate Court agreed that the All-22 film constituted proprietary information. Id. at 15. While addressing Caroff’s argument, the Court noted that confidentiality was not required to determine whether information is proprietary. Id. Thus, Rutgers’ choice to use the All-22 film pursuant to the limited terms of the Big Ten agreement did not “strip the [film] of its proprietary nature.” Id. The Appellate Court also agreed that disclosing the All-22 film would inherently disadvantage Rutgers’ football program. Id. at 16-17. The Court noted that the All-22 film is a significant bargaining chip to receive information from other teams. Id. To subject Rutgers’ All-22 film to disclosure under OPRA would render the value of the films meaningless, because instead of using the film to bargain for information with other opponents, its opponents could simply obtain Rutgers’ All-22 film under OPRA. Id. The Appellate Court also agreed that the All-22 film was protected by OPRA’s federal law exemption because it is a copyrightable work. Id. at 17; see 17 U.S.C. § 102(a).
This opinion highlights the ability for universities and other sports entities to film, compile, and copyright game and practice film. Videos created by public entities are not subject to disclosure if used in a limited way to benefit coaches, players, and/or alumni.
John E. Tyrrell is a founding Member of Ricci Tyrrell Johnson & Grey whose practice involves representing stadium operators and other producers of spectator events. Erica Witter is an intern at Ricci Tyrrell and a student at Drexel University’s Thomas R. Kline School of Law
[1] Caroff waived his common law right of access argument by not addressing the trial judge’s decision on appeal.
