Thursday, June 11, 2015

Unpublished trial court OPRA opinion.

"Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals. Unless somebody puts them on-line and calls attention to them, they are likely not to be located by people who may want to search for them. I think that it's important that court opinions, even if they are not precedential, are easily accessible for future use.

500 W57 JV LLC v. Township of Lakewood
Ocean County, Docket No. OCN-L-1228-15
Hon. Vincent J. Grasso, A.J.S.C.
June 9, 2015
Click here for the court's decision.

Summary:  Court ruled the the following OPRA request failed to identify with the necessary specificity or particularity the government records sought.
Any proposal, request, inquiry or application, formal or informal, from any entity or individual to acquire, swap, lease, exchange or engage in any other transaction related to any land contained within or directly adjoining, the Crystal Lake Preserve, and any communications, including e-mails, correspondence, and memoranda of discussions, concerning same, since January 1, 2013.

Unpublished trial court OPRA opinion.

"Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals. Unless somebody puts them on-line and calls attention to them, they are likely not to be located by people who may want to search for them. I think that it's important that court opinions, even if they are not precedential, are easily accessible for future use.

John Paff v. Atlantic County Prosecutor's Office
Atlantic County, Docket No. ATL-L-5474-14
Hon. Nelson C. Johnson, J.S.C.
June 4, 2015
Click here for the court's decision.

Summary:  Court rules that Sixth Amendment right to a fair trial and avoidance of "premature release of information [which can] damage reputations and disrupt criminal investigations" justify prosecutor's "neither admit nor deny" response to an OPRA request seeking records proving the existence of an investigation.

Tuesday, June 9, 2015

Please take a moment to urge your State Senator to support open government.

Following is my letter to Senator Bob Smith who represents my home town in the New Jersey Senate.  Please go to the New Jersey Legislature's website, find the Senator that represents your town and then and urge him or her to support S781 and S782.

June 9, 2015
Dear Senator Smith:
via e-mail to
Would you please support S781 and S782 and help get them through the legislative process?  The bills, which would strengthen New Jersey's Open Public Records Act (OPRA) and Open Public Meetings Act (OPMA), were heard before the Senate Budget and Appropriations Committee yesterday (June 8, 2015) but no vote was taken, mainly due to opposition by the New Jersey State League of Municipalities, New Jersey School Boards Association and other organizations that seek to to maintain the status quo. Details on the bills, including copies of the most recent version of the amendments, are on the New Jersey Foundation for Open Government's website here. 
After reviewing the bills, I'm sure that you'll agree that the League's concern about the bills' "costs and practicality" are greatly exaggerated and that the bills, as amended, will bring much needed, common-sense improvements to both the OPRA and OPMA.
I look forward to hearing from you on this important matter.
Very truly yours,
John Paff
1605 Amwell Rd
Somerset, NJ  08873

Friday, June 5, 2015

Challenging onerous OPRA forms and procedures.

Lately, I've been challenging government agencies that appear to have gone out of their way to make submitting Open Public Records Act (OPRA) requests as difficult as possible.  In furtherance of this plan, I filed a Government Records Council (GRC) Denial of Access Complaint today against the Sussex County Prosecutor's Office (SCPO).  My complaint is on-line here.

My complaint asserts three charges against the SCPO: 1) that it insists that its specific agency form must be used for an OPRA request; 2) that it requires requestors to "deliver [the completed form] in person" and 3) that it contains limiting language that the GRC has already found deters citizens from making requests.  Also troublesome, although not listed in my complaint, is the form's question that asks if the requestor is a United States Citizen and a space on the form referencing the type of "identification provided" by the requestor.

I have filed similar complaints against other agencies that have led to them adopting a simpler procedures.  For example, information on my complaint against the Bergen County Prosecutor's Office is on-line here.

Monday, June 1, 2015

New OPRA suit seeks video of fatal Perth Amboy police shooting.

On June 1, 2015, Clinton lawyer Walter M. Luers filed an Open Public Records Act (OPRA) lawsuit seeking a copy of a security video showing of Perth Amboy police officers fatally shooting a man on December 4, 2013.  Luers' client is John Schmidt, an open government activists, who requested a copy of the video from the Middlesex County Prosecutor's Office (MCPO) on April 14, 2015.  On April 15, 2015, James E. O'Neill, the MCPO's Public Information Officer, denied Schmidts request claiming that the video is exempt as a "criminal investigatory record."

At issue is a December 4, 2013, 1:20 p.m. fatal shooting of Dixon Rodriguez, 32, by Perth Amboy Police Officers Rafael A. Puntiel and Gina Fontan.   According to the officers, Rodriguez attacked Fontan with a knife. The MCPO later cleared both officers, claiming that a video, taken from a surveillance camera at a nearby grocery store, supported the officers' version of the shooting.  Dixon's family filed a lawsuit in 2014 claiming that police planted the knife on Dixon's body.

Schmidt's lawsuit, brief and other filings are on-line here.  A court date has not yet been scheduled.

Thursday, May 28, 2015

Passaic discloses Internal Affairs log

In response to a judge's order arising out of an Open Public Records Act (OPRA) lawsuit (Richard Rivera v. City of Passaic, et al, Docket No. PAS-L-462-15), the City of Passaic (Passaic County) Police Department has disclosed a redacted log showing the disposition and case number of all Internal Affairs matters processed by the Department between 2011 and 2014.  That log is on-line here.

The log does not disclose the name of the officers charged or the complainants.  But, it still reveals some useful information, such as that out of the 25 excessive force complaints brought against officers in the four year period, 19 resulted in "exonerated," 3 in "unfounded," 2 in "not sustained" and 1 as "administratively closed."

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.