Thursday, August 27, 2015

Bound Brook releases CAD report regarding teacher/student "suspicious incident."

I have previously blogged about my lawsuit, filed by Montclair attorney Richard M. Gutman that sought the narrative description from a police report of an October 29, 2014 incident involving a 24-year-old teacher (identified as the "Suspect") and an unidentified juvenile (identified as the "Victim").

Today, I received a more narrowly redacted version of the report that discloses the narrative description as stating: "Dr. Gallagher reported a possible inappropriate relationship between a student and a teacher."  The version of the report that I was given before filing my suit had that sentence excised from it.  The lawsuit is now concluded.

Thursday, August 20, 2015

OPRA case seeks job applications filed by eight Camden County cops.

On Thursday, September 24, 2015 at 9 a.m., Camden County Superior Court Judge Michael J. Kassel will hear argument in the case of Darnell Hardwick v. County of Camden, et al, Docket No. CAM-L-3039-15.  At issue is Hardwick's request for job applications filed by Camden County Police Officers Anthony Adair, Stephen Knatz, Lucas Murray, Anthony Rossner, Michael Swangler, Nicole Berry, Lance Carrington and Diana Deren, all of whom were hired in 2013.

While "personnel records" are typically confidential, Walter M. Luers, Hardwick's attorney, argues that the personnel exception in the Open Public Records Act (OPRA) contains an "exception to the exception" which requires disclosure of "data contained in information which disclose conformity with specific experiential, educational or medical qualifications required for government employment."  Thus, Luers argues, while the County may provide Hardwick with redacted job applications, the officers' applications must be disclosed to the extent that they reveal whether or not the officers satisfied training courses and met other job requirements.

Media and the public are invited to attend this hearing which will be held in the County Courthouse at 101 South 5th Street, Camden.  Those who plan to attend are cautioned to call the court at 856-379-2366 the day prior to hearing to ensure that the hearing hasn't been postponed.

Navigating New Jersey's Attorney Disciplinary System.

Many are not aware that the public is allowed to attend and observe disciplinary hearings against New Jersey attorneys.  This article is intended to provide an overview of the disciplinary system and help the public navigate it.

A citizen's first step is to learn which attorneys have active complaints against them.  This can be ascertained by reviewing the Office of Attorney Ethics' on-line Public Hearing List.  This list, which is updated monthly, is a snapshot of active ethics cases pending at the time the list is generated.  Since this list changes every month, I'll use the August 2015 list for the following examples.  Look through the list and see if you know of any attorneys on it.  (While uncommon, it is not unheard of for a public attorney, such as a municipal attorney or prosecutor to appear on this list.)

The 26th page of the list references a pending "Threatening Criminal Prosecution" charge against Camden County attorney Yaron Helmer.  The complaint, which was filed March 20, 2015 (resulting from an investigation that began on November 20, 2012), has been assigned docket number XIV-2012-0606E. In order to find out more about the case, one would need to obtain a copy of the complaint which would contain detailed allegations against the lawyer.

The disciplinary system is administered through several local ethics committee and a centralized Office of Attorney Ethics.  Contact information for all of these is on-line here.  The correct committee an interested citizen should contact is determined by the Roman numeral that begins the matter's docket number.  In Helmer's case, the docket number begins with XIV meaning that the proper office to contact for further information is the Office of Attorney Ethics in Trenton.  A citizen who wanted to know exactly what Helmer did to warrant this charge could send an e-mail to the OAE, such as:
Jason Saunders, Deputy Ethics Counsel
Office of Attorney Ethics
via e-mail only to
Dear Ms. Saunders: 
Would you please e-mail me the formal complaint in XIV-2012-0606E (Yaron Helmer) as well as Helmer's formal answer?
I have already completed this step on Helmer's case and have blogged about the charges against him.

The next step is to learn the date, hour and location of the next public hearing at which the case against Helmer will be presented.  In order to do this, complete this form and submit it to the same official to which you sent your request for the complaint and answer.  As you can see from an e-mail I received from OAE Director Charles Centinaro, the disciplinary system honors such requests and will notify a requestor in advance of the next hearing.

Wednesday, August 19, 2015

Court to decide whether public--or only law enforcement--can access Promis/Gavel's customized reports.

Andrew C. Carey
Middlesex County Prosecutor
On Wednesday, September 16, 2015 at 9 a.m., Middlesex County Assignment Judge Travis L. Francis will hear argument in Paff v. Carey, Docket No. MID-L-4240-15. This potentially very important case presents the following question:
Are records that can be queried from the data contained within the Promis/Gavel system--New Jersey's automated criminal case tracking system--obtainable under the Open Public Records Act?  
(Of somewhat lesser importance, the case also asks whether reports that have already been queried from Promis/Gavel are subject to disclosure under OPRA.)

Governments increasingly keep information in relational databases that are capable of producing custom reports that users specify.  Governments, however, often believe that the convenience and advantages of custom computerized reports should inure only to the government and not private citizens.

Private parties have legitimate needs for such reports.  Journalists and researchers would clearly find it useful to have access to customized reports showing, for example, all sexual assault arrests in Union County during 2011 through 2014 sorted by municipality. Such availability would greatly help journalists serve their audiences and researchers draw fact-supported conclusions.  As pointed out in the American Civil Liberty Union's and Electronic Frontier Foundation amicus brief filed in my case against Galloway Township,
Members of the public - who, lest we forget, ultimately pay for this technology - should be granted access to the same tools that public agencies use every day - specifically the ability to request a search of its electronic records for specific terms. Especially in this information age, any other result would effectively eviscerate the public's rights.
I am being represented in the matter by Walter M. Luers of Clinton.  Media and the public are invited to attend this hearing but are cautioned to call the court at 732-519-3413 the day prior to hearing to ensure that it hasn't been postponed.

Tuesday, August 18, 2015

Appellate Division shoots down Opderbeck ruling.

Senate Majority Leader
Loretta Weinberg
In an August 18, 2015 published opinion, a three-judge Appellate Division panel reversed Bergen County Superior Court Assignment Judge Peter E. Doyne's prior ruling that required the Midland Park Board of Education to make "copies of any appendices, attachments, reports, and other documents referred to in" the school board public meeting agendas publicly available on the Internet at least forty-eight hours prior to the meeting.  In his December 24, 2013 decision that accompanied the order that the Appellate Division today reversed, Doyne, who has since retired, said that the Midland Park school board's bare agendas were "virtually meaningless" without the attachments and appendices.

Back in 1975, when the Open Public Meetings Act (OPMA) was passed, the Internet was in it infancy and making an agenda's attachments publicly available would have required a significant amount of labor and paper.  The panel noted, however, that disclosing the attachments in today's world "merely requires adding an electronic 'link' to the Board's agenda, which is already posted on its official website." The ease of making this information available made it "tempting" for the panel to require public bodies to provide that link.

The panel found, however, that judges aren't allowed to "amend statutes using [their] own notion of what is in the public's best interest."  Rather, the panel ruled that the courts must enforce statutes as they are written and not as judges feel they ought to be written.  The panel defined a meeting agenda as merely "a list or outline of things to be considered or done."  Since Doyne's ruling required what the statute did not, it was reversed.

On the penultimate page of its decision, the Appellate panel "respectfully suggested" that the legislature consider updating the Meetings Act to reflect the technological changes that have occurred during the forty years since the Act's enactment.  Senate Majority Leader Loretta Weinberg (D-Bergen) has introduced S-781 which would make many important changes to the Meeting Act.  Unfortunately, The bill has hit a roadblock that Weinberg claims was erected by the New Jersey League of Municipalities.

The panel's opinion was written by Presiding Judge Jose L. Fuentes and joined by judges Victor Ashrafi and Amy O'Connor.

Sunday, August 16, 2015

Lumberton Township loses executive minutes again.

Back in 2009, I sued Lumberton Township (Burlington County) because the Township Committee wasn't promptly disclosing the non-exempt parts of its nonpublic (executive or closed) session minutes to the public.  During that action, I learned that Lumberton had completely lost the minutes of all executive sessions held prior to 2003.  The Consent Judgment that resolved my lawsuit took steps to keep Lumberton from losing any more of its executive session minutes.

Earlier this year, I learned that Lumberton again lost its executive session minutes from 2011, 2012 and 2013.  Since Lumberton, by failing to secure its minutes, violated the terms of my 2009 Consent Judgment, I, with Ted Rosenberg of Moorestown as my attorney, filed a Motion to Enforce Litigants' Rights.

In an August 14, 2015 letter, Lumberton Township Solicitor George M. Morris, who was not the Township Solicitor at the time the minutes were lost, described in detail how the 2011, 2012 and 2013 minutes were lost.
As for the missing 2011 through 20l3 minutes, I immediately made inquiry as to whether paper forms of the documents exist. My inquiry included direct discussions with the Municipal Clerk, former Municipal Solicitor and each member of the governing body. I learned that as a standard practice, the governing body and the solicitor were provided paper copies of the minutes before their meetings. They reviewed the minutes and approved the same. Because the minutes were approved, but not yet authorized for release, the paper copies were collected and destroyed. Unfortunately, no paper copy was retained for these specific years, The electronic versions of the minutes were left on a thumb drive and that drive was corrupted, The Township worked with IT specialists to restore the information but it was unrecoverable.
The hearing on my motion is currently scheduled for September 4, 2015.

Sunday, August 9, 2015

Supreme Court Committee mulls rule change to permit OPRA plaintiffs to remain anonymous.

In early 2016, the New Jersey Supreme Court's Civil Practice Committee is likely to decide whether it should recommend an amendment to the New Jersey Rules of Court that would expressly allow plaintiffs in Open Public Records Act (OPRA) lawsuits to proceed in court anonymously.  Also at that time, the Committee's Discovery Subcommittee should decide whether the Committee should recommend a rule change that would require attorneys who submit OPRA requests to obtain records pertaining to pending litigation to also serve copies of those requests to the attorneys for all other parties in the litigation.

The first issue--whether the court rules should recognize the right of an anonymous OPRA requestor to sue anonymously--was prompted by my October 2, 2012 request to the Civil Practice Committee to consider such a rule.  In my request, I raised an August 17, 2012 unpublished trial court decision by Atlantic County Superior Court Judge Nelson C. Johnson in Anonymous v. Borough of Longport, Docket No. L-9552-11 (a copy of the decision is attached to my October 2, 2012 request at the link above).  In his decision, Judge Johnson ruled that OPRA requestors cannot proceed anonymously because the Supreme Court had not yet adopted a court rule granting them that privilege.  Judge Johnson stated that "OPRA has been the law for more than a decade . . . if our Supreme Court thought it appropriate to adopt new court rules to address the Act’s provisions; it was free to do so.”

In my request to the Civil Practice Committee, I pointed out that OPRA specifically grants citizens the right to make anonymous OPRA requests and that this right would be illusory if a records custodian by simply denying an anonymous request could force the requestor to either abandon the request or give up his or her statutory right to remain anonymous.  "OPRA’s grant of a right to remain anonymous means nothing if requestors must waive anonymity in order to enforce their OPRA rights," I wrote.

The Committee discussed my request on page 99 of its January 27, 2014 report to the Supreme Court.  The Committee decided to hold my request over for consideration in the next rules cycle.  Since the Committee works on a two-year cycle, its next report will be due in early 2016.  The other issue--whether attorneys who submit OPRA requests on their client's behalf should be required to serve copies on other attorneys in the case--is discussed on page 98 of the report.