Monday, May 16, 2016

NJ Senate Committee to hear "New Jersey Open Data Initiative" on May 23rd.

On May 23, 2016, 1 p.m. the Senate State Government, Wagering, Tourism & Historic Preservation Committee will hear and take testimony on Senate Bill No. 727, a measure that would require State departments to cause their "data sets" to be uploaded to an "easily navigable Internet website."  The bill is sponsored by South Jersey Democrats Nilsa Cruz-Perez and Jeff Van Drew.

The hearing, which will be held in Committee Room 7 on the second floor of the State House Annex in Trenton, is open to the public and those who attend may present the Committee with oral testimony.  As an alternative, anyone can submit written testimony via fax to 609-777-2998 or e-mail to OLSAideSSG@njleg.org.

Those who wish to attend are cautioned to first call the Committee's office at 609-847-3890 to make sure that S-727 is still on the agenda and to verify that the hearing hasn't been moved or postponed.

Monday, May 9, 2016

Gloucester County Fire District ordered to comply with Meetings Act.

In a May 6, 2016 Order, Assignment Judge Georgia M. Curio issued an injunction requiring the Harrison Township (Gloucester County) Fire District to "strictly adhere to [the Open Public Meetings Act] in all respects including, but not limited to, the keeping of minutes."

During oral argument on April 21, 2016, Curio noted that the Fire District's failure to keep closed meeting minutes on five separate occasions over a three year period violated the Meetings Act and constituted a pattern of noncompliance that warranted injunctive relief.  Curio stated that the Fire District would be "hard-pressed" to deny its actions are willful or knowing if it violates the Meetings Act again.

The case is captioned Donald Baldwin v. Harrison Township Fire District, et al, Docket No. GLO-L-1713-15 and Baldwin was represented by the Law Office of Walter M. Luers.


Sunday, May 8, 2016

The state won't enforce the law, so I've got to go town to town.

For years, I have been trying to get state level enforcement of a provision in the Local Public Contracts Law that requires local governments to publish in the local newspaper the dollar amounts of the profession services contracts that it awards without competitive bidding.  Such notification is clearly required by state statute but many local governments simply ignore the requirement.

In early 2015, I was heartened by the Department of Community Affairs' initial decision to adopt a rule, in response to the New Jersey Libertarian Party's (NJLP) Petition for Rulemaking, that would enforce the dollar amount disclosure requirement. Unfortunately, the Division let the rule proposal expire.  The NJLP still holds on to hope and has filed another, similar Petition for Rulemaking on March 16, 2016.

Since the available evidence suggests that there is reluctance at the state level to impose accountability requirements on local officials, I have taken to enforcing the dollar amount disclosure requirement on a town by town basis.  This is, of course, highly inefficient and time consuming, but I don't see any other option given New Jersey's past treatment of this issue.

The first municipality in which I have attempted local enforcement is the small Borough of Peapack and Gladstone in Somerset County.  The Borough wasn't publishing the dollar amounts of its no-bid professional services contracts and wasn't publishing the no-bid contracts it was awarding to its municipal prosecutor and public defender at all. (The Borough genuinely believed that publication of the prosecutor's and defender's contracts wasn't necessary because it was part of a joint municipal court.)

I have secured from that Borough an April 29, 2016 letter in which the Borough agreed, going forward, to fully comply with the dollar amount disclosure statute.  One down and probably another couple hundred to go.

Cape May challenged on charging OPRA requestors to copy records to be scanned and e-mailed.

On April 4, 2016, Clinton attorney Walter M. Luers filed a Denial of Access complaint with the Government Records Council (GRC) on behalf of a local on-line newspaper reporter who was told that she needed to pay "$1.80 for copying fees" before Cape May City Clerk Louise Cummiskey would scan twenty-six pages of public records into an electronic file and e-mail it to her.

The reporter, Lisa Tilton of Galloway Township News, had filed a February 24, 2016 Open Public Records Act (OPRA) request in which she sought a "[c]opy of Legal Bills, including Purchase Order, Invoice and detail billing in Scheeler vs. City of Cape May. Timeframe August 1, 2015 to current."  In her response, Cummiskey imposed a $1.80 copying charge and told Tilton that "[t]here are 26 documents @ $.05." (Note: Even if the copying fee is justified, it would come to $1.30, not $1.80.)  In justification of the fee, Cummiskey stated:
As I previously stated, we are ready to send you the requested records upon receipt of payment. As the records you requested are not maintained electronically, we have to pull those individual records from storage, copy, and then scan them to send them to you electronically. Therefore, we are permitted to charge you a $0.05 copying fee per page. I direct your attention to N.J.S.A. 47:1A-5. The fact that you have requested these copies electronically does not negate the copying fee.
Again, we are ready to send you these documents upon receipt of payment. I am NOT refusing your request. I am asking that you send me the required payment before I electronically send you the documents.
Luers said that he and Tilton "simply do not understand" why Cummiskey "is insisting that she needs to make copies of the invoices before scanning them"  and that the invoices "should be scanned as they are, not copied first."  He noted that OPRA allows records custodians to charge requestors only their actual, necessary costs of producing records and that the burden is on the custodian to justify those costs.  In addition to the records, Luers is also seeking an order requiring the City of Cape May to pay his attorney fees for bringing the action.

The GRC will render a decision in about a year to eighteen months.

Monday, May 2, 2016

Trenton admits that it violated Attorney General's Internal Affairs reporting requirements.

In her April 29, 2016 response to the Government Records Council (GRC), Assistant City Attorney Lori E. Caughman admitted that the Trenton Police Department failed to prepare two types of mandatory public reports that summarize complaints received and adjudicated by the department's Internal Affairs Unit.

Caughman's filing was in response to my Denial of Access Complaint which was filed on March 31, 2016 by attorney CJ Griffin of Hackensack.  The complaint shows that on October 21, 2015, I had requested several types of reports that the Attorney General's Internal Affairs Guidelines require police departments to prepare and make available to the public.  Among the reports I requested  were the reports required by "Requirement 10" on p 44 of the Guidelines:
Each agency must release reports to the public summarizing the allegations received and the investigations concluded for that period. In addition, the agency shall periodically release a brief synopsis of all complaints where a fine or suspension of 10 days or more was assessed to an agency member.
In her December 10, 2015 response to my request for the six most recent versions of each of these required reports (for a total of twelve reports), Trenton Police Detective Alexis Durlacher released only one Internal Affairs Summary Report covering the first half of 2012.  I received no answer to my December 21, 2015 fax to Diadina Allen of the City Clerk's office asking why the eleven missing reports were not provided.  It was only after I filed my GRC action did the City admit that those eleven reports do not exist.

The New Jersey Libertarian Party's Police Accountability Project has filed an Internal Affairs complaint "against the employee(s), whose identities are presently unknown, who are responsible for preparing and releasing" these reports.

Monday, April 18, 2016

Significant OPRA loss in Appellate Division: Citizens are denied the benefits of data technology that government agencies routinely enjoy.

On April 18, 2016, the Appellate Division issued a published (thus precedential) ruling in the case of Paff v. Galloway Township, et al holding that a public agency is not obligated under OPRA to create a list showing the sender, recipient, date and subject lines of e-mails sent by a particular public official during a specific period of time.  This decision reverses Atlantic County Judge Nelson C. Johnson's June 10, 2014 decision that held to the contrary.

While the e-mails themselves (subject to necessary redactions) are public records, the three-judge panel held that public bodies are not required to create lists of e-mails because that would require them to create a new record, even if the effort in doing so is minimal.  The court acknowledged that "it would only take a few minutes to compile the list."

The court ruled:
Until [the Legislature amends OPRA], our holding — that OPRA does not require the creation of a new government record that does not yet exist at the time of a request, even if the information sought to be included in the new government record is stored or maintained electronically in other government records — should provide a clear demarcation line in this case, as well as future cases.
This is a far-reaching holding because it allows government agencies--many of which keep their most useful data electronically--to query their data to create custom reports that are useful to the agencies while relegating the public to get only the reports that the government has already seen fit to prepare.  As aptly stated by the Electronic Frontier Foundation, who appeared as an amicus curiae in the case,
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 (or, here, the preparation an e-mail log). Especially in this information age, any other result would effectively eviscerate the public's rights.

Ocean judge weighs in on the right of non-residents to use OPRA.

Ocean County Superior Court Judge Mark A. Troncone is the most recent judge to rule on the issue of whether a non-resident of New Jersey has the right to request records under the Open Public Records Act (OPRA).  In his April 14, 2016, opinion and order in Scheeler v. Ocean County Prosecutor's Office, Docket No. OCN-L-395-15, Judge Troncone found that OPRA is "clear and unambiguous" and wrote that if the Legislature intended to limit OPRA rights to New Jersey citizens, it could have used the word "citizen" instead of "person" throughout the statute.  Troncone wrote:
It is clear that taken to its logical conclusion, the position advanced by [the prosecutor's office] would leave many parties who have a legitimate need to access to public records without recourse. For example, a non-resident property owner and taxpayer could not obtain public records affecting his property; the out-of-state motorist involved in an accident would be unable to access documents from law enforcement officials relating to the incident; and a newspaper, published in a neighboring state but circulated in New Jersey, investigating a claim of alleged official misconduct or corruption would be barred from obtaining public records. Clearly, all of these parties have a real and legitimate interest in obtaining those records but, under [the prosecutor's office's] overly restrictive view of the reach of OPRA would be prevented from doing so. This would clearly frustrate the intent and purpose of the statute.
Troncone's ruling is in accord with an October 2, 2015 decision by Burlington County Assignment Judge Ronald E. Bookbinder in Scheeler v. Atlantic County Municipal Joint Insurance Fund, et al, Docket No. BUR-L-990-15.  But, his decision is contrary to two rulings handed down on February 19, 2016 by Atlantic/Cape May County Judge Nelson C. Johnson:  Scheeler v. City of Cape May, et al, Docket No. CPM-L-444-15 and Lawyers Committee for Civil Rights Under Law v. Atlantic City Board of Education, et al, Docket No. ATL-L-832-15.  All three of these decisions have been appealed.