Tuesday, August 26, 2014

Rural Cumberland County township adopts e-mail policy

In response to my request, the Township of Greenwich (Cumberland County) adopted an e-mail policy, on-line here, for its elected and appointed officials.  While weaker than what I would prefer, the policy "discourages" Township officials from using their personal e-mail accounts.  Instead, it requires them to adopt a free e-mail account, such as one from GMail or Yahoo, and "use a name such that they are identifiable in the contest of their role with the Township of Greenwich including by way of example and not limitation: 'townshipcommitteemansmith@gmail.com'”  It requires officials to give the Township Clerk their e-mail passwords so that e-mails may be searched "provide responsive information in compliance with State law to any document request.

Sunday, August 24, 2014

Judge grants access to Cape Prosecutor's letters regarding Wildwood Crest police officials, ruling that they "contain findings of public official misconduct."

In his August 21, 2014 Order and Decision (on-line here), Superior Court Judge Nelson C. Johnson ruled that the public is entitled to see unredacted versions of four letters written "by the Cape May County Prosecutors's Office [containing] exculpatory or favorable information to [criminal] defendants concerning" three Wildwood Crest Police officials.  In his ruling, Johnson held that the letters "contain findings of public official misconduct, which the public certainly has a heightened interest in knowing."

Such exculpatory letters from a prosecutor are referred to as "Brady letters" and are named after the United States Supreme Court's 1963 decision in the case of Brady v. Maryland.  That decision, among other things, requires law enforcement officials to notify criminal defendants and their lawyers whenever the government receives information that a police officer involved in the defendants' cases has been untruthful.

Johnson, who characterized the Prosecutor's defense to my lawsuit as being "akin to a mantra," had reviewed the four letters in camera (privately in his chambers).  He found that while not "technically 'Brady letters,'" two of the letters "written by Prosecutor Taylor very pointedly address the legal and public policy concerns enunciated by the Brady Court."  He went on to say that those two letters are "harbingers of Brady Letters which will be written by [Taylor's] office in the future should either Captain [David] Mayer or Lieutenant [Michael] Hawthorne be called to testify as witnesses in a criminal case."

Importantly, Judge Johnson found that all four letters were exempt under the Open Public Records Act's advisory, consultative and deliberative exemption.  Thus, recovery of my attorney's fees for bringing this case is unclear.  But, even though I lost on OPRA, Judge Johnson found that "the public interest in said letters far outweighs any government interest in confidentiality."  Accordingly, he found that apart from OPRA, I had a common law right to disclosure of the letters.

Johnson gave the Prosecutor's Office 21 days within which to either disclose the letters or appeal his ruling.  I was represented in the case by Richard M. Gutman of Montclair.

Background on this case are available in my blog articles written on June 20, 2014 and July 22, 2014.

Thursday, August 14, 2014

New OPRA lawsuit: Chatham Township keeps police officer's claim and two settlement agreements secret.

At its September 12, 2013 meeting, the Chatham Township (Morris County) Committee passed Resolutions 2013-181 and 2013-182 which, respectively, a) authorized settling a claim filed by former Chatham police sergeant Michael Giannone and b) authorized $100,000 of Township money to cover "the Township's share in this settlement."

Upon learning this, I filed an Open Public Record Act (OPRA) request for the settlement agreement between Giannone and the Township as well as the Notice of Tort Claim in which Giannone set forth the basis for his claim.  I asked for identical records regarding a claim filed in November 2013 by Chatham police officer Ed Gibney. 

Township Clerk Gregory J. LaConte partially fulfilled and mostly denied my request.  In his June 4, 2014 response, LaConte provided me with an unredacted version of Gibney's Tort Claim Notice and a heavily redacted version of Giannone's. 

Gibney's claim had as its basis his August 14, 2013 suspension from duty which he contended was "procedurally improper."  Giannone's claim was so heavily redacted that its basis could not be determined.

LaConte denied access to the Township's settlement agreements with both Giannone and Gibney claiming that they "are materials resulting from confidential personnel matters and not civil litigation."

Clinton attorney Walter M. Luers filed a lawsuit on my behalf, Paff v. Chatham Township, Docket No. MRS-L-1793-14.  The filing is on-line here.  The matter will be heard in Morristown before Thomas L. Weisenbeck, A.J.S.C. at 1:30 p.m. on Thursday, September 25, 2014.

School board's reason why secrecy is necessary is itself secret.

I am accustomed to public bodies claiming that their executive session minutes are confidential.  It is not so typical, however, for the public body's reasons for wanting to keep its executive minutes secret to also be kept secret.  Not knowing a public body's reason for keeping a document secret makes it very difficult to challenge its claim of confidentiality.

On May 13, 2014, Passaic County Superior Court Judge Ralph L. DeLuccia told the Clifton Board of Education to provide him with some additional information so that he could decide whether or not certain portions of the Board's June 19, 2013 executive session meeting minutes should or should not be disclosed to the public.  So, the attorney for the school board, Donald K. Okner, wrote up a certification dated May 20, 2014 and sent it to the court without sending a copy to my lawyer.  Judge DeLuccia, based on the lawyer's secret certification, decided that the executive session minutes need to be kept secret.

On August 22, 2014 at 9 a.m., Judge Thomas F. Brogan will hear my motion, filed by Clinton lawyer Walter M. Luers, seeking to unseal the May 20, 2014 certification that convinced Judge DeLuccia to keep portions of the June 19, 2013 executive session minutes confidential.

My motion and the school board's opposition are on-line here and here.

Tuesday, August 12, 2014

OPRA suit challenges State's refusal to disclose OPRA requests

On Wednesday, October 8, 2014 at 3 p.m., the Hon. Mary C. Jacobson, A.J.S.C. will hear argument in my Open Public Records Act (OPRA) case against the New Jersey Motor Vehicle Commission.  My order to show cause, civil complaint, exhibits and brief, filed by Walter M. Luers, Esq. of Clinton, are are on-line here.

My lawsuit challenges the MVC's denial of my request for "all OPRA requests submitted to the MVC between 05/05/14 and 05/12/14."   The MVC oddly denied my request on the basis that disclosure would give "an advantage to competitors" and because "there is an interest of third parties in protecting the confidentiality of their requests for access to public documents"

Tuesday, August 5, 2014

Ocean County judge to review dog bite video

I have previously blogged about my Open Public Records Act (OPRA) case against the Ocean County Prosecutor on June 24, 2014 and July 2, 2014. Today, I report the July 31, 2014 decision that Ocean County Assignment Judge handed down in Paff v. Ocean County Prosecutor's Office, Docket No. OCN-L-1645-14, which I've placed on-line here.

Briefly, this case involves disclosure of a police dash-cam video of a police officer allegedly siccing a police dog on a member of the public. The Tuckerton Police officer in control of the dog, Justin Cherry, has been charged with official misconduct and aggravated assault as a result of the incident.

Judge Grasso scolded the Prosecutor's office for not being fully candid in its response to my request.  In his opinion, the judge wrote:
OPRA contemplates a process whereby the custodian communicates with the requestor so that the requestor can intelligently decide whether to further pursue his or her documents request. Here, the Prosecutor’s Office waited until the return date to advise Paff that the video in question was not a surveillance video, as Paff assumed it was in his submissions, but instead a police dash cam video. It was the Prosecutor’s Office’s responsibility to apprise Paff of information that might help him decide whether to litigate the matter or to abandon it well in advance of the return date. In light of the Prosecutor’s Office’s failure to carry its statutory burden, the court finds that the Prosecutor’s Office improperly denied Paff access to the video.
The judge went on to rule that I am the prevailing party, entitling my attorney, Richard Gutman of Montclair, to be paid his attorney's fees by the Prosecutor's office.

Still, Judge Grasso elected to give the prosecutor another chance to prove that the video recording is exempt as a criminal investigatory record.  He has continued the case for thirty days to allow both lawyers to "submit supplemental briefs, certifications, and evidence on whether the police dash cam video constitutes a criminal investigatory record under N.J.S.A. 47:1A-1.1’s two- pronged analysis."  Judge Grasso also ordered the prosecutor to supply him with a copy of the video for the court's in camera review.

Wednesday, July 30, 2014

OPRA suit seeks Perth Amboy police records regarding alleged teacher-on-teacher sexual assault

On Wednesday, August 27, 2014 at 9 a.m., the Hon. Travis L . Francis, A.J.S.C. will hear argument in my Open Public Records Act (OPRA) case against the City of Perth Amboy (Middlesex County).  My civil complaint, exhibits and brief, filed by Walter M. Luers, Esq. of Clinton, are are on-line here.

I am seeking records regarding a lawsuit that a Perth Amboy teacher filed against the school district for mishandling her report that she was sexually assaulted in her classroom by another teacher.  That lawsuit, which settled for $199,000, is discussed on my blog here.

I submitted an OPRA request to Perth Amboy City Clerk Elaine M. Jasko for the police incident reports regarding the alleged assault as well as any criminal complaints that were filed against the alleged perpetrator.  I made this request to learn when, if ever, the alleged sexual assault was reported to the Perth Amboy Police Department and what, if anything, the Police Department did about it.

Perth Amboy denied my request for the police reports claiming they were "criminal investigatory records." As for the complaints, police officials claimed that they "do not fall under OPRA.  They have to be requested through the courts."  When I challenged that assertion, the Police Chief conceded that no criminal complaints existed.

Our brief to Judge Francis cites N.J.S.A. 47:1A-3, which contains an exception to the "criminal investigatory records" exemption.  Under OPRA, "where a crime has been reported but no arrest yet made, information as to the type of crime, time, location and type of weapon, if any" shall be available to the public "within 24 hours or as soon as practicable."  So, if the alleged sexual assault was reported to the police, the public is at least entitled to know that a report was made.  This knowledge might cause Perth Amboy residents and taxpayers to ask questions such as: Why did the Perth Amboy school district pay $199,000 when the police, who apparently investigated the alleged sexual assault, did not find enough evidence to warrant filing a criminal complaint?

Our brief also cites the common law right of access which, apart from OPRA, requires disclosure of records when the public's interest in disclosure exceeds the government's need for confidentiality.  Here, the teacher's allegations were never tried before a jury, so we really don't know whether or not they're true.  All we know is that the school board paid the teacher a substantial sum of money and inserted a confidentiality clause that prevents both the teacher and Board from talking about the settlement.  But, as Mr. Luers writes in our brief
the public, including both the taxpayers in Perth Amboy and the taxpayers of New Jersey deserve additional details about this incident (beyond mere allegations) so that they can take action, such as making additional OPRA requests; attending Perth Amboy Board of Education meetings and making comments on the results of the litigation; running for office or supporting others who run for office based on the results of the LAD litigation; questioning the Board's practices regarding reports of criminal activity; and other actions.
In its response to my lawsuit, Perth Amboy proffered a certification by Police Lieutenant Denise Sosulski that conceded that the City does possess "one (1) incident report dated February 24, 2010 regarding an assault that allegedly took place at 8:30 a.m. on February 22, 2010 at the Wilentz School."  Sosulski goes on to state that after the initial report was taken, the matter was transferred over to the Middlesex County Prosecutor's Office and that the Perth Amboy Police had no further involvement in the matter. 

Why didn't Perth Amboy simply tell me this at the outset?  Had the City done so, I would have directed another OPRA request to the Prosecutor's office.  And, if the police report is as innocuous as Sosulski implies, why didn't Perth Amboy just give it to me in recognition of my right, at least under the common law right of access, to disclosure?  Had Perth Amboy not been so stingy with information about this matter, this lawsuit would have probably been avoided.