Sunday, August 13, 2017

Hunterdon Prosecutor asked to allow OPRA requests to be submitted electronically.

The following letter was sent by Libertarians for Transparent Government, a non-profit I serve as executive director, to the Hunterdon County Prosecutor's office.  At issue is that office's insistence that OPRA requestors submit their requests only by hand-delivery or regular mail.
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Deborah D. Factor, First Assistant 
Hunterdon County Prosecutor's Office
65 Park Avenue
Flemington, NJ 08822-0756
Via fax to 908-806-4618 and e-mail to prosecutor@co.hunterdon.nj.us

RE: Open Public Records Act

Dear First Assistant Factor:

Your office's on-line instructions to the public on how to submit an Open Public Records Act (OPRA) request do not provide a way for those requests to be e-mailed or faxed to your office.  Rather, the page states that "[o]nce fully completed, the request form can be mailed or presented in person to the Hunterdon County Prosecutor's Office."   Your OPRA form itself states that "[t]he completed request form may only be either mailed or hand-delivered."

Your office's requirement that citizens use only hand-delivery or U.S. mail to submit OPRA requests is not only out-of-step with the way people communicate in the 21st Century, but also runs afoul of the Government Records Council's (GRC) September 29, 2015 decision in Dello Russo v. East Orange, GRC Complaint No. 2014-430.  In that case, the GRC held that East Orange's "policy of banning submission of OPRA requests electronically represents an unreasonable obstacle on access."  It held that while the City did not need to accept OPRA requests by both fax and e-mail, it must accept some form of electronic submission.

Would you please amend your OPRA form and instructions so that they conform to the GRC's holding?

Very truly yours,

Tuesday, August 8, 2017

Wall Township school board sued over refusal to disclose yearbook invoice.

On August 3, 2017, Libertarians for Transparent Government (LFTG) filed a lawsuit against the Wall Township Board of Education challenging its refusal to disclose an invoice from Jostens, the high school's yearbook vendor.

On June 19, 2017, LFTG requested a copy of Jostens' invoice regarding its production of the 2017 high school yearbook.  The request was made because one of the student's photographs in the 2017 yearbook was altered so as to remove references to Donald Trump.  As a result, some of the yearbooks have been reprinted at a cost of $10,000. The school board has claimed that no public funds were used for the reprint.  In response to LFTG's records request, the school board confirmed that an invoice existed but denied access claiming that the invoice was protected by the deliberative process privilege.  In his June 19, 2017 denial, Board Secretary Brian J. Smyth stated that "the invoice has not been reviewed and approved for payment [thus it] is exempt while the district deliberates as part of the review."

The lawsuit is captioned Libertarians for Transparent Government (LFTG) v. Wall Township Board of Education and Brian J. Smyth, Docket No. MON-L-2848-17 and LFTG is being represented by Walter M. Luers of Clinton.

Sunday, August 6, 2017

Identity of one of the cops who shot Radazz Hearns has been confirmed.

On October 15, 2015, both Keith Brown of NJ Advance Media and Isaac Avilucea of the Trentonian reported that State Police Detective Doug Muraglia was one of the two officers who together fired as many as eighteen shots at Radazz Hearns, then age 14, on August 7, 2015.   The other officer who fired at Hearns was identified by the newspapers as Mercer County Sheriff’s Detective James Udijohn.

Yet, when I asked the Attorney General's office to confirm that Muraglia and Udijohn were indeed the shooters, it refused.  So, with the help of Hackensack attorney CJ Griffin I filed an Open Public Records Act (OPRA) lawsuit that sought the names of the two officers who opened fire on Hearns.  On June 30, 2016, I prevailed before Mercer County Assignment Judge Mary C. Jacobson and the State appealed.

Because of the Supreme Court's recent decision in North Jersey Media v. Lyndhurst, the State, likely realizing that it was going to lose its appeal, decided to give me one Use of Force Report that identifies Muraglia as having fired his weapon.  I am hopeful that the State will soon confirm the other officer's identity and drop its appeal.

Tuesday, August 1, 2017

Appeal taken from Burlington County ruling that 3 year old unapproved meeting minutes are "deliberative" and thus not subject to OPRA.

On May 26, 2017, Burlington County Assignment Judge Ronald E. Bookbinder issued a written opinion holding that the minutes of an October 19, 2012 public meeting of the Moorestown Ethical Standards Board were "deliberative" and thus exempt under the Open Public Records Act (OPRA) at the time I requested those minutes on December 28, 2015--more than three years after the meeting was held.  Judge Bookbinder deemed the minutes "deliberative" because the Board had not yet "approved" them at the time my OPRA request was received.

In his ruling, Judge Bookbinder found that the Ethical Standards Board did violate the Open Public Meetings Act (OPMA) by not making its meeting minutes "promptly available" to the public.  He ordered that the Board, going forward, "must annually approve and release all prior unapproved meeting minutes at its required reorganizational meeting" and that "if the Ethics Board receives a request for copies of its prior meeting minutes before this deadline, then the Board must convene a Special Meeting within thirty (30) days of the request in order to approve and release the requested minutes."

Through attorney CJ Griffin of Hackensack, I have appealed Judge Bookbinder's ruling.  I believe that meeting minutes, because they simply record what happened during a meeting, are not "deliberative" and are therefore public records at the moment they are created and regardless of whether or not they are "approved."  Also, it is important that people are able to enforce their OPRA (rather than OPMA) rights for unapproved meeting minutes because only OPRA (and not OPMA) requires the custodian to reimburse a successful requestor his or her attorney fees.

Background on the case and copies of court documents are available at my March 3, 2016 blog article.

Monday, July 31, 2017

Using Paff v. Galloway to get docket information from the Office of Administrative Law.

This project is admittedly a work-in-progress, but I thought that the open government community might be interested in learning how I am using the New Jersey Supreme Court's decision in Paff v. Galloway to obtain useful docket information from the Office of Administrative Law.

I'll discuss my project below, but I want to first review the issue that Paff v. Galloway decided and why docket information kept by the Office of Administrative Law is of value to journalists and citizen activists.

Paff v. Galloway, decided by the New Jersey Supreme Court on June 20, 2017, established that, in general, "information in electronic form, even if part of a larger document, is itself a government record [and that] electronically stored information extracted from an email is not the creation of a new record or new information; it is a government record." Prior to this decision, agencies would often deny requests for data extractions from government databases claiming that producing such an extraction would obligate them to create a new records--something that the Open Public Records Act (OPRA) does not require.

When the Supreme Court issued its decision, I considered other government databases that contained useful information but which were currently unavailable to the public.  The database containing docket information on cases filed with the Office of Administrative Law (OAL) caught my attention because it is not available on-line anywhere and because the decisions that OAL judges make implicate important public issues of which citizens and the media are normally not aware. 

For example, OAL judges rule on special education cases, school ethics commission cases, State Police disciplinary cases and Civil Service Commission cases.  (Actually, the OAL judges don't make final rulings--rather they make recommendations that an agency head, such as the Commissioner of Education, may later accept, modify or reject.) Click here for a listing of all the types of cases that OAL judges decide.

Working through non-profit Libertarians for Transparent Government, I started my project by making an OPRA request on June 22, 2017 for:
Fields from the OAL's contested case database that contain the following types of data: a) name of petitioner/appellant, b) name of adverse party, c) name of public employer (if applicable), d) date of hearing, e) location of hearing, f) OAL docket number, g) Agency docket number and h) name of judge. Please limit the response to only those records that correspond to cases that are, as of June 22, 2017, scheduled for a hearing at any location during the month of September 2017.
My first response was received on July 13, 2017.  While the OAL gave me the database extraction, it didn't provide it in the format requested.  Instead of providing an Excel worksheet that users could sort and filter, the OAL provided a PDF file printed in 5-point type that could not be sorted or filtered. (The OAL's letter and PDF file are on-line here.)  When I called the OAL's records custodian to complain, I was told that the New Jersey Attorney General's office was reluctant to provide an Excel file because it was concerned that providing this data in Excel or similar format would make it too easy for a requestor (or someone downstream from the requestor) to alter the data and then publicly represent that altered data as being genuine.  After I sent the OAL Custodian a July 14, 2017 letter, he and the Attorney General reconsidered and provided an Excel file, which I've placed on-line here.

The Excel file at the link above is certainly not complete--rather it lists about 350 cases that were on June 22, 2017 scheduled to be heard by OAL judges in September 2017.  But, the file gives a good idea of what type of information is available and how it could be of value to the public.

For instance, residents of Irvington (Essex County) might find it interesting that two hearings involving Michael Chase are scheduled before Judge Kimberly Moss in September.  This case pretty clearly relates to former Police Chief Michael Chase who claimed that he was illegally fired in 2016.   Or, Perth Amboy (Middlesex County) residents might be interested in a complaints under the school ethics law against school board members Israel Varela, Kenneth Puccio and Samuel Lebreault that are currently scheduled before Judge Michael Antoniewicz on September 1, 2017.  (The hearings are open to the public but people other than the parties rarely attend because they are not aware of the hearings' dates, hours and locations.)

So, look through the Excel file to see if any of the cases interest you. For any that do, e-mail the following OPRA request to OAL Custodian Candice G. Hendricks at candice.hendricks@oal.nj.gov.
"Under both OPRA and the common law right of access, for [name and docket number of case] I would like a copy of the agency's transmittal form (N.J.A.C. 1:1-8.2) together with the attachments to the transmittal form."
The transmittal form and attachments will provide you with documents that will allow you to understand the nature of the case.

I plan on seeking a much larger data extraction from the OAL that will contain all of its cases.  When I obtain this extraction, I will post it on this blog.

Thursday, July 20, 2017

Middlesex Prosecutor releases "Use of Force" reports related to Edison man's death after police encounter.

Prosecutor Andrew C. Carey
On June 4, 2016, the Middlesex County Prosecutor's Office (MCPO) issued a press release that reported that Daniel Nagahama of Edison was pronounced dead on June 2, 2016, three hours after he had an encounter with Highland Park police.  The press release did not report the names of the Highland Park officers with whom Nagahama had the encounter nor did it report what types of force, if any, the officers employed.  All that was reported was that Nagahama became belligerent and struggled with police after they attempted to revive him, that he was not placed under arrest but was taken to the hospital by rescue workers.

In August 2016, Libertarians for Transparent Government, a New Jersey nonprofit organization (LFTG), represented by Hackensack lawyer CJ Griffin, filed a lawsuit against the MCPO seeking additional records that would disclose the names of the officers, the type of force they used and other details that would provide more details and give better context to Nagahama's death.  Details on that suit are set forth in this article.

On November 18, 2016, Middlesex County Assignment Judge Travis L. Francis ruled that the Use of Force reports completed by Highland Park officers were public records that needed to be disclosed. He ruled, however, that other requested records were exempt from disclosure.  Later, Judge Francis stayed disclosure of the Use of Force Reports pending the Supreme Court's ruling in North Jersey Media v. Lyndhurst where one of the issues to be decided was whether Use of Force Reports were exempt from disclosure.

On July 11, 2017, the Supreme Court decided in the Lyndhurst case that Use of Force reports are public records that must be disclosed under the Open Public Records Act (OPRA).  Given that ruling, the MCPO released the Use of Force reports.  The MCPO also agreed to pay $8,300 to cover LFTG's court costs and attorney fees.

The Use of Force Reports, while sparse, do show that four Highland Park officers encountered Nagahama prior to his death: Sergeant Jason C. Culver and Patrolmen Brian O'Mara, Kevin M. Garrity and Christopher DeCosta.  All four reported that Nagahama was arrested (contrary to the press release), that he was "under the influence" and "resisted police officer control."  All four also reported that they placed Nagahama in a "compliance hold" and used their "hands/fists" during the encounter.  Additionally, O'Mara reported that he used a "chemical/natural agent" during his encounter with Nagahama.

Tuesday, June 20, 2017

Supreme Court rules that fields of data extracted from e-mails are OPRA "government records."

In a unanimous decision issued today in John Paff v. Galloway Township, et al, the New Jersey Supreme Court held that under the Open Public Records Act (OPRA), "information in electronic form, even if part of a larger document, is itself a government record [and that] electronically stored information extracted from an email is not the creation of a new record or new information; it is a government record."

Thus, it appears that going forward, the public is generally entitled to information stored in government databases, subject to normal confidentiality constraints and payment of a service charge if extraction of the requested data requires “a substantial amount of manipulation or programming of information technology.”

In its ruling, the Court rejected the Appellate Division's April 18, 2016 opinion that held that for electronically stored information, “OPRA only allows requests for records, not requests for information.”  The Supreme Court held that the Appellate Division's "position cannot be squared with OPRA’s plain language or its objectives in dealing with electronically stored information."

The Supreme Court also ruled that courts are to grant no deference to decisions or information advice given by the New Jersey Government Records Council (GRC) except when the Appellate Division considers appeals of GRC decisions.  It also recognized that while "[i]t may take only two to three minutes for an IT Specialist to make accessible fields of information from two weeks of emails; it will take considerably longer for the Township Clerk and Chief of Police to determine whether the requested information in each email may intrude on privacy rights or raise public-safety concerns."  Accordingly, the Court remanded the matter back to the trial court to address any such confidentiality concerns.

I was ably represented in the case by Walter M. Luers of Clinton.