Thursday, March 30, 2017

Appellate Court: County correctly redacted home addresses, e-mail addresses and telephone numbers from OPRA requests.

In an unpublished decision issued today, a two-judge panel of New Jersey Superior Court, Appellate Division affirmed a trial court's ruling that Somerset County was justified in redacting the home addresses, e-mail addresses and telephone numbers from fifty-four Open Public Records Act (OPRA) requests the County had received in early 2015.

In the case, Jesse Wolosky v. Somerset County, et al, Wolosky sought, among other records, "each OPRA request received by the County from persons other than [Wolosky] from February 15, 2015 to [May 18, 2015]."  The County's records custodian located fifty-four OPRA requests that fit within the scope of Wolosky's request but excised the requestors' home addresses, e-mail addresses and phone numbers before disclosing them to Wolosky.   The County claimed that the redactions were necessary "to safeguard from public access a citizen's personal information when disclosure of the information would violate the citizen's reasonable expectation of privacy."

The appellate panel agreed with the County's position holding that Wolosky does not have a right under OPRA or the common law to access the email and home addresses of persons who submitted OPRA requests to the County.

Wednesday, March 29, 2017

Hunterdon judge orders disclosure of police dash-cam video, denies OPRA requestor's attorney fees.

In a December 2, 2016 order, Assignment Judge Yolanda Ciccone ruled that Readington Township (Hunterdon County) must provide the Trentonian newspaper with a patrol car's dash-cam video of the August 26, 2016 arrest of Scotch Plains Police Officer Stephanie Roggina.  According to media reports, Roggina was arrested for drunk driving after she struck a guardrail while attempting to elude police. She reportedly had only been on the job since June 2016.

Judge Ciccone noted that there are presently two conflicting, published Appellate Division decisions--North Jersey Media Group, Inc. v. Township of Lyndhurst and John Paff v. Ocean County Prosecutor's Office--regarding disclosure of police dash-cam videos.  When such conflicts exist, court rules allow a judge to decide which decision to follow and Judge Ciccone found that the Paff v. Ocean County case was "in line with the Legislature's intent in drafting OPRA."

On October 27, 2016, Ciccone's counterpart in Middlesex County--Assignment Judge Travis L. Francis--similarly elected to follow the Paff v. Ocean County case in a case against Old Bridge Township in which the OPRA requestor sought a dash-cam video of the former Carteret Police Director's drunk driving arrest.

Ciccone ruled, however, that Readington was not required to pay the the Trentonian's attorneys fees because "because [Readington's] refusal to submit the footage was based in reliance on the currently good North Jersey Media Group decision." 

The lawsuit, Digital First Media v. Township of Readington, et al, Docket No. HNT-L-427-16 was filed by Hackensack attorney C.J. Griffin on September 30, 2016. 

According to Griffin, Readington and the Hunterdon County Prosecutor's office, which was also named as a defendant in the case, appealed Judge Ciccone's order. The release the video has been stayed until after the Supreme Court resolves both the North Jersey Media Group, Inc. v. Township of Lyndhurst and Paff v. Ocean County Prosecutor's Office cases.  Griffin said that she cross-appealed from the part of the order that denied attorney's fees.

Sunday, March 12, 2017

Prosecutor: Library Board meeting violated the Meetings Act

In a March 6, 2017 letter, the Union County Prosecutor's Office told the Berkeley Heights (Union County) Library Board of Trustees that it violated the Open Public Meetings Act (OPMA) by discussing contract negotiations during a nonpublic (i.e closed or executive) session with the other party to the contract in attendance.

N.J.S.A. 10:4-12(b)(7) expressly permits contract negotiations to be discussed outside of public view to prevent the other party to the contract from learning the public body's strategy.  But, when the other party participates in the discussion, tthe only ones being kept in the dark are members of the public--the precise group the OPMA intends to keep informed.

The letter, authored by Acting Assistant Prosecutor Shawn P. Barnes, cites the unpublished Appellate Division opinion in Maureen Nevin, et al v. Asbury Park City Council and said that the case was "applicable and controlling in this case."  Nevin sits on the New Jersey Foundation for Open Government's (NJFOG) Board of Directors as the representative of the New Jersey Chapter of the Society of Professional Journalists.

Friday, March 10, 2017

Bergen judge rebuffs Teaneck's bid to bar "abusive and excessive" OPRA requests.

In his March 9, 2017 opinion, Bergen County Superior Court Judge Robert P. Contillo rejected Teaneck Township's attempt to bar future Open Public Records Act (OPRA) requests from a man who made 380 requests in a two-month period.  The judge also denied Teaneck's bid to require the man to pay "extraordinary handling fees" and to relieve it from processing those requests.

According to the opinion, Elie C. Jones filed "an avalanche" of OPRA requests soon after the Township rejected a $10,000 settlement demand Jones had made to resolve his lawsuit against a Teaneck law enforcement officer.  Judge Contillo noted that under the circumstances, "it is easy to under the Township's frustration."  Still, he found that "OPRA requests--even those designed and timed to bludgeon a municipality into a financial settlement--cause no immediate or irreparable harm."  A showing of such harm is required before an injunction can be issued.

The judge noted that Teaneck is "not powerless" and that OPRA provides remedies for public entities facing an enormous number of requests.  One remedy contained in N.J.S.A. 47:1A-5(g) permits the Township to deny requests that "substantially disrupt agency operations" if the requestor refuses the Township's attempts to reach a solution that would accommodate both it and the requestor.  For example, the Township could have requested that Jones prioritize his requests and assess a special service charge for the extraordinary amount of time it would take to fulfill them. Since the lawsuit was filed, Jones had abandoned 290 of his 380 requests, which Judge Contillo found undermined the Township's argument for an injunction.

Judge Contillo also denied the Township's request that the court "assess a special handling fee" because "it is not for the court to assess the fee."  Rather, OPRA requires the Township to assess the fee leaving the requestor with the option to pay the fee, challenge it in court or abandon the request.

The court also wrote that if Township officials felt that Jones' conduct constituted harassment, they could proceed against him under both the civil and criminal code. 

Jones was represented in the matter by Walter M. Luers of Clinton.

Thursday, February 23, 2017

Judge differs with Warren County regarding disclosure of a civil complaint alleging sexual assault of minor.

On January 20, 2017, Warren County records custodian Art Charlton responded to an Open Public Records Act (OPRA) request for, among other records, a copy of the civil complaint filed C.C. v. County of Warren, Docket No. WRN-L-17-15.  In this case, which is still pending, a teenage boy alleged that a Warren County official sexually molested him on four occasions in 1988 and 1989 during transports between the Warren County Juvenile Detention Facility and other locations.  C.C. was between 14 and 16 at the time.

In his letter, Charlton explained that he redacted from the requested records the "identity of the accused" official.  Typical is the redaction applied to paragraph 17 of the complaint: "Each of the four (4) instances of abuse occurred when John Doe 1, the then Warren County [redacted], volunteered and was authorized by County officials to personally transport C.C. to or from County facilities."  It was Charlton's position that the public wasn't permitted to know the position that the accused pedophile held with the County.  The twenty-three page, redacted complaint is on-line here.

Charlton's primary justification for the redactions was the Child Sexual Abuse Act, N.J.S.A. 2A:61B-1(f) which states that "The name, address, and identity of a victim or a defendant shall not appear on the complaint or any other public record as defined in [the OPRA]. In their place initials or a fictitious name shall appear."  Thus, Charlton asserted, the position held by the alleged pedophile needed to be suppressed to prevent the public from identifying him.

Given extensive media coverage of pedophilia accusations regarding a particular Warren County official, it was not hard for me to guess the identity of the defendant and which office he held.  Yet, I wanted to be able to name the defendant in my writings about this complaint without having to worry that I might be defaming someone.

Accordingly, on February 20, 2017, Libertarians for Transparent Government, a non-profit for which I serve as executive director, filed a New Jersey Judiciary Request Form with the Warren County Civil Division Manager's office.  The request sought to determine whether the state court system would agree or disagree with Charlton's position that the accused pedophile's County position was permissibly redacted from the complaint.  In order to simplify the matter, the request sought only the 4th, 5th and 6th pages of the civil complaint.  Those pages were heavily redacted and would, if disclosed in unredacted form, disclose the position held by the defendant.

In her February 22, 2017 letter in response to my request, Assignment Judge Yolanda Ciccone disagreed with Charlton's assessment.  She wrote that while Court Rule 1:38 (the rule that governs disclosure of court records) "does exempt from disclosure of numerous documents relating to victims of abuse, it does not equally protect the identities of alleged perpetrators."  She further explained that "the purpose of R.1:38 is to encourage transparency between government and its citizens." 

Accompanying Judge Ciccone's letter were unredacted versions of the 4th, 5th and 6th pages of the civil complaint.  They clearly show that Defendant John Doe 1 was "the then Warren County Sheriff."  Public records and media accounts confirm that the Sheriff of Warren County in 1988 and 1989 was Edward Bullock, who according to a November 18, 2015 news article, passed away on November 16, 2015.

Bridgeton appears to misuse closed sessions to keep its Council squabbles behind closed doors.

The minutes of the Bridgeton (Cumberland County) City Council's eight most recent nonpublic meetings are on-line here.  These minutes are for the meetings, known as executive or closed sessions, where the City Council went behind closed doors to discuss one or more of the nine topics that the Open Public Meetings Act (OPMA) allows to be discussed without the public being present.  One of those nine exceptions, known as the "personnel exception," allows the City Council to privately discuss the hiring, firing, performance, compensation, and discipline of public employees.  According to a 1991 New Jersey Supreme Court decision, closed-door meetings are necessary to ensure the Council's "free and uninhibited discussion" regarding personnel matters.

The minutes of the Council's September 6, 2016 closed meeting, however, show that only one "personnel" matter was discussed.  The minutes recite: "Councilman Spence inquired about the meaning of a remark made by Councilman Surrency at last Work Session.  Councilman Surrency responded that there was no meaning."  This discussion, which on its face does not involve the hiring, firing or discipline of specific a public employee, does not appear to qualify for a closed-door meeting under the OPMA's personnel exception.  Rather, it appears to be a skirmish between two Council members regarding a remark made during a previous public meeting. 

Similarly, the August 16, 2016 closed minutes disclose that Councilman Zapolski distributed documents "that refuted claims made by Councilman Surrency" during a previous meeting.  Again, this appears to be more of a scuffle between two Council members than a confidential discussion regarding a specific public employee.

The chief goal of the OPMA is to ensure that citizens get to witness all phases of governmental decision-making except when an overriding need for confidentiality authorizes a closed-door meeting.  The exceptions to open public meetings are specific and limited and the courts have ruled that those exceptions must be strictly construed against closure of meetings to the public.  While it is understandable that the City Council may want to avoid putting its internal strife on public display, its decision to close the August 16 and September 6 meetings to the public does not appear to be justified under the law.

Also suspect--but for a different reason--is the Council's December 20, 2016 closed meeting for which the substantive part of the minutes states, in its entirety:  "There was a discussion regarding municipal court matters."  This discussion, which was alleged to be a "contract" matter, may or may not have qualified for private discussion.  It is impossible to tell because the minutes themselves are not "reasonably comprehensible" as required by the OPMA's N.J.S.A. 10:4-14.

Tuesday, February 14, 2017

Sponsor promises to amend attorney fee-shifting language in pending OPRA bill.

On February 13, 2017, the Assembly State and Local Government Committee favorably recommended Assembly Bill No. 4532 which would, in its current form, weaken the Open Public Records Act (OPRA) by relieving government agencies from paying a successful OPRA plaintiff's attorney fees if "the court or [Government Records Council] finds that the decision to deny access was reasonable and made in good faith after due diligence."

OPRA's mandatory fee-shifting provision is one of the law's most important features.  According to a 2005 Appellate Division case, without fee-shifting, "the ordinary citizen would be waging a quixotic battle against a public entity vested with almost inexhaustible resources. By making the custodian of the government record responsible for the payment of counsel fees to a prevailing requestor, the Legislature intended to even the fight." 

But, during yesterday's hearing, Committee Chairman Troy Singleton remarked that he was assured by Assemblyman Wayne P. DeAngelo, one of the A-4532's three current sponsors, that the bill's proposed limitation on attorney fee-shifting was intended to apply only to lawsuits where the "personal government records"--a new category of exempted records created by the bill--were at issue.  The bill defines this new category as "consist[ing] of or pertain[ing] solely to a pet or home alarm system permit, license, or registration." 

Earlier this afternoon, I spoke with Elizabeth A. Meyers, DeAngelo's chief of staff, who confirmed that it was never DeAngelo's intention to so dramatically alter OPRA's fee-shifting structure.  Meyers said that DeAngelo has instructed the Office of Legislative Services to amend the bill to make it clear that the bill's limitation on fee-shifting applied onto to court cases where "personal government records" (i.e. pet and home alarm licenses) were being sought.  She said that the curative language, which should be available on-line within a few days, would be offered as an amendment when the bill reaches the Assembly floor.