Tuesday, May 26, 2015

Administrative Law Judge finds that Fire District records custodian did not willfully violate OPRA.

In an April 23, 2015 written opinion, New Jersey Administrative Law Judge Susan M. Scarola ruled that a former Commissioner for Franklin Township (Somerset County) Fire District No. 1 did not "knowingly and willfully" violate the Open Public Records Act (OPRA).  The judge did find, however, that the District is liable for $7,828.95 in attorney fees and costs borne by the OPRA requestor.

The opinion, which is on-line here, concerned Jeff Carter's OPRA request for Financial Disclosure Statements filed by fire commissioners between 2000 and 2011.  The District's records custodian at the time was Melissa Kosensky who ceased being a Commissioner in 2012 after having lost her election.  Well after the expiration of OPRA's seven business-day response period, William T. Cooper, the Fire District's attorney at the time, advised Carter to make his request to the Franklin Township Clerk because FDS filings are done through that office.

Carter filed a Denial of Access complaint with the Government Records Council (GRC) on April 4, 2011.  From subsequent OPRA requests, Carter learned that the District did possess four FDSs from 2007 in its files and that Kosensky was aware their existence as of January 27, 2011.  Carter contended that Kosensky willfully withheld the four FDS forms from him and argued that she should be fined for a knowing and willful OPRA violation.

Judge Scarola found that Kosensky was negligent in not immediately providing the four 2007 FDS forms to Carter and for relying on Cooper to respond to Carter.  But, Scarola wrote, "having had the opportunity to observe Kosensky’s demeanor throughout the course of these proceedings and during her testimony, she did not impress me as anything other than a worker who was doing her job to the best of her ability without an ulterior motive of denying Carter to access to records he requested."  Thus, the court held that Carter was not able to prove Kosensky's "actual knowledge that the actions were wrongful and a positive element of conscious wrongdoing" and declined to levy a fine against her.

Judge Scarola did find, however, that Carter, having prevailed in the OPRA case, was entitled to legal fees and costs.  She awarded Carter's lawyer, Walter M. Luers of Clinton, $315 per hour for 23.9 hours spent on the case plus $300.45 in costs for a total of $7,828.95.

Scarola's ruling will stand unless the GRC modifies or rejects it.

Ocean judge orders Stafford to identify denied documents.

In a May 25, 2015 ruling, Ocean County Assignment Judge Vincent J. Grasso ordered Stafford Township to produce a "Vaughn index" that identifies and describes the nature of each record that it claims to be exempt from disclosure.  Background on the suit is on-line here.

In his opinion, which is on-line here, Grasso notes that "a Vaughn index is necessary for plaintiff to advocate his case under both OPRA and the common law. The Township provided no information about the documents that it withheld from disclosure, but merely argu[ed] the confidentiality requirements under the personnel record exemption."

Judge Grasso also rejected Stafford's cross-motion that sought a declaration that my lawsuit was frivolous.  Grasso wrote that "the court finds that plaintiff has a legitimate basis for his litigation and his claim cannot be dismissed as frivolous as this juncture."  My blog entry on Stafford's frivolity claim is on-line here.

I was represented in the suit by C.J. Griffin.

Thursday, May 14, 2015

Judge: Bound Brook teacher must be made party to OPRA case.

Somerset County Assignment Judge Yolanda Ciccone, by way of a May 11, 2015 letter, directed my lawyer to bring former Bound Brook art teacher Kimberly Charnuska into my Open Public Records Act (OPRA) lawsuit so that "she may place on the record her position to [my] Order to Show Cause."  Ciccone's letter is on-line here.  My lawsuit seeks the "narrative description" from a police report of an October 29, 2014 incident involving a Charnuska (identified as the "Suspect") and an unidentified juvenile (identified as the "Victim").  Background on the suit is on-line here.

GRC issues list of cases pending at either OAL or Appellate Division.

On May 14, 2015, in response to a citizen's OPRA request, the Government Records Council (GRC) issued a list of 53 of its cases that are awaiting action by either the Appellate Division or by the Office of Administrative Law (OAL).  The list, which is on-line here omits only one known case, Scheeler v. NJ Dep’t of Educ., GRC Complaint No. 2014-125, which is pending before the Appellate Division.

Interestingly, 20 of the 53 cases involve either Fire District No. 1 or Fire District No. 2 in Franklin Township, Somerset County.

NJSPCA adopts OPRA request form

People have asked me whether the New Jersey Society for the Prevention of Cruelty to Animals (NJSPCA) is subject to the Open Public Records Act (OPRA).  In order to find out, I submitted an OPRA request to the NJSPCA for its records request form. (All agencies subject to OPRA are required by N.J.S.A. 47:1A-5(f) to adopt a records request form.)

The NJSPCA apparently believes that it is subject to OPRA because it provided me with its OPRA request form, which I've placed on-line here.  Interestingly, the NJSPCA has retained a private company called JB Broadcast Media, Inc. to manage its OPRA requests.  The contract between the NJSPCA and JB is also included at the link above.

I have no e-mail or fax number for the NJSPCA so I filed my request by mail to its New Brunswick address.  JB's contract, however, includes JB's e-mail address and the NJSPCA records I received were e-mailed to me from that address.  Those who wish to request NJSPCA records by e-mail may try submitting their requests to the e-mail address listed on JB's contract.

Wednesday, May 13, 2015

Appeals Court: Town did not prove that surveillance video was exempt from disclosure.

Victor Ashrafi
Appellate Division Judge 
On May 13, 2015, the New Jersey Superior Court Appellate Division, in a published and thus precedential case, discussed public disclosure of security videos taken by a stationary camera in a municipal building.  The decision, in Patricia Gilleran v. Township of Bloomfield, is on-line here.

In an opinion authored by Judge Victor Ashrafi, the three-judge panel rejected Bloomfield's generalized claim that disclosure of the videos would "jeopardize security of the building or facility or persons therein" or violate the rights of confidential informants and domestic violence victims who may be detected by the camera when they enter the municipal building.  Bloomfield conceded that township officials had not viewed the fourteen hours of recordings Gilleran requested.

The court, however, was careful to point out that its holding was limited to this particular set of facts.  The court noted that future cases might be decided differently if a municipality were to allege specific instances where crime victims and confidential informants might be identified or where security weaknesses, such as a camera's blind spots, would be disclosed.  The court said that each case has to be judged on its specific facts.

Finally, the court held as "impractical" Gilleran's argument that Bloomfield needed to review the entire fourteen hour recording and pinpoint the specific confidential material.  The court wrote that the "Legislature could not have contemplated that the OPRA disclosure requirement would engage the services of government employees to view video recordings from stationary surveillance cameras for hours upon hours to determine whether they contain confidential or exempt material."

Gilleran's attorney was CJ Griffin of Hackensack and Bloomfield's was Steven J. Martino of Bloomfield.  Amicus American Civil Liberties Union of New Jersey was represented by Stuart J. Young.

Monday, May 11, 2015

Cumberland Prosecutor again reminds municipal prosecutors not to allow improper downgrades.

Jennifer Webb-McRae
Cumberland County Prosecutor
On April 23, 2015, I blogged here about the Bridgeton (Cumberland County) Municipal Court's continued practice of downgrading statutory charges to violations of an municipal code provision that, in addition to being preempted and invalid,  was also renumbered in 2003. I was especially concerned because the Bridgeton Municipal Court continued to process these improper downgrades despite a 2010 warning from Cumberland County Prosecutor Jacqueline Webb-McRae that such downgrades violate a 1998 Attorney General directive.

In response to my complaint, First Assistant Prosecutor Harold B. Shapiro issued an April 24, 2015 memo (on-line here) that again reminded municipal prosecutors of their duty to abide by the 1998 Directive.

I am hopeful that the new memorandum will be more effective than the one issued in 2010.