Monday, December 19, 2016

What is a "typical partisan caucus" and how can the public be certain that this OPMA exception is not being used to subvert public's rights under OPMA?

According to a December 17, 2016 article "Jackson Council Spars with Resident Over Political Caucus Meeting," by Phil Stilton of the Shore News, local activists secretly videotaped the mayor and every member of the Jackson Township Council attending an unadvertised meeting at a law office.  Three members of the Township's Municipal Utilities Authority also reportedly attended.

When confronted with the evidence, Council President Rob Nixon claimed that the secret meeting was a "typical political caucus." Nixon is quoted as having said that: “The council separately from our political roles, we’re permitted to meet with anybody in a political context that we want to so long as township business is not discussed outside of that context.”

Nixon's comments correctly characterize the Appellate Division's holding in Mountain Hill, LLC v. Township of Middletown, 399 N.J. Super. 486 (App. Div. 2008) which held, at page 506, that an entire municipal council who all belong to one political party can meeting in secret, unannounced meetings provided that "only the political implications of [the issue discussed], its 'importance' to the party in terms of votes, the political pulse of the residents of the Township and how to 'spin' items of political importance" were discussed.  In other words, a single-party majority of elected officials can privately meet as long as they are discussing the political ramifications of public issues as opposed to the issues themselves.

Back in 1975, the New Jersey Department of State issued a set of guidelines that explained:
Since a political caucus is only open to one party and would not be open to all the members of the public body, it would not be required to be held in open session. Of course, if all the members of a public body were from one political party, the Law would not allow them to hold closed meetings by simply calling them political caucuses. Nor would the Law allow an effective majority of the members of the public body to use the political caucus mechanism to circumvent the Law's provisions.
Did the Jackson Township Council hold an illegal meeting and then, after the fact, label it as a "typical partisan caucus" to circumvent the Meetings Act?  The public has no way of knowing, as long as the meeting attendees stick to the same narrative.  What is clear is that the "typical partisan caucus" exception is the proverbial loophole that's big enough to drive a truck through.

Saturday, December 17, 2016

Salem judge rules that filed criminal complaint becomes exempt under OPRA when placed in personnel file.

At a December 16, 2016 hearing, Georgia M. Curio, Assignment Judge of Cumberland, Salem and Gloucester counties, ruled that a criminal complaint possessed by the Woodstown-Pilesgrove Regional School District was exempt from public disclosure as a "personnel record."  Curio's remarks were made orally from the bench in an Order to Show Cause hearing in Heather Grieco v. Regional Board of Education, Docket No. SLM-L-162-16.

Grieco requested the complaint after reading in the school board's March 26, 2015 closed meeting minutes that Superintendent Thomas A. Coleman, Jr. reported "that [redacted] case has been remanded back to the prosecutor to be downgraded and then sent back to the court."  The minutes label the matter as a "discussion item" and a "personnel matter" but provide no further information about the underlying criminal charge.

Grieco, concluding that a school employee had been charged with a criminal offense, sought a copy of the criminal complaint so that she could identify the identity of the defendant and the nature of the underlying charge.  Business Administrator Frank A. Rizzo, in a July 15, 2016 letter, denied the request stating that "[w]hile there is one document responsive to the request, the document is a personnel record contained in the individual's personnel file. Personnel records are exempt from disclosure under N.J.S.A. 47:1A-10 and the general privacy provision contained in N.J.S.A. 47:1A-1."

Grieco's lawyer, Raymond Baldino of the Clinton-based Law Office of Walter M. Luers, argued that criminal complaints are public filings and the fact that the complaint was later placed in an employee's personnel file did not retroactively make it exempt from disclosure. Curio disagreed and stated that personnel records are "carefully guarded" even if the criminal complaint was considered a public record by the courts or other agencies. 

Curio also upheld the school board's denial of Grieco's request for closed minutes that redacted the name or at least the initials of a student who had filed a due process petition.  She ruled that the minutes were properly redacted even though the student's name may have been made public in related filings held by the Department of Education and Office of Administrative Law.

Monday, November 28, 2016

Lawsuit seeks "type of crime" that suspended Mercer Sheriff lieutenant was alleged to have committed.

On January 11, 2017, 2 p.m., Burlington County Assignment Judge Ronald E. Bookbinder is scheduled to hear argument in Libertarians for Transparent Government (LFTG) v. Mercer County Prosecutor's Office (MCPO), Docket No. BUR-L-1567-16.  At issue is whether the public is permitted to know whether a specific crime was reported against a lieutenant in the Mercer County Sheriff's Office and if so, the nature of the conduct underlying the report.

This case stems from a June 7, 2016 Trentonian article entitled "Mercer County sheriff supervisor suspended following criminal probe that found no wrongdoing."  The article reported that Lieutenant Scott Schoellkopf was suspended for an unreported amount of time "over undisclosed allegations of criminal misconduct."  According to the article, MCPO officials investigated and "determined that criminal prosecution was not warranted."

In its Open Public Records Act (OPRA) request, LFTG asked for "information as to the type of crime, time, location and type of weapon, if any."  According to N.J.S.A. 47:1A-3(b), which is part of OPRA, the public is entitled to this information when a crime has been reported but no arrest made.  LFTG is being represented by CJ Griffin of Hackensack.  The case was originally filed in Mercer County but was transferred to Burlington County.

Wednesday, November 23, 2016

Supreme Court exempts security camera footage from OPRA disclosure.

In a November 22, 2016 decision, a 4 to 2 majority of the New Jersey Supreme Court held that footage from a town hall security camera is not subject to disclosure under the Open Public Records Act (OPRA).  The four-Justice majority, through an opinion authored by Justice Jaynee LaVecchia, was concerned that disclosure of security video could reveal the security camera's vulnerabilities.  According to the decision, "it takes no stretch of the imagination to realize that [releasing security footage on demand] would make it possible for any person to gather the information necessary to dismantle the protection provided by such security systems." 

The majority did not, however, deny the requestor's claim under the common law right of access, which mandates a balancing of the requestor's need for disclosure versus the government's need for confidentiality.  The court remanded the matter back to the trial court for such a balancing.

In his dissent, Chief Justice Stuart Rabner found that while the majority offered "sound reasons" for excluding security camera footage from OPRA, its view is not consistent with what the Legislature wrote when it enacted OPRA.  According to Rabner's dissent, "The Legislature could have written [a blanket security footage exemption] standard into the law but did not."

The case is captioned Patricia Gilleran v. Township of Bloomfield, et al, and Gilleran's attorney was CJ Griffin of Hackensack.  Amicus curiae (friend of the court) briefs were submitted by the Attorney General's office, the American Civil Liberties Union and the Reporters Committee for Freedom of the Press (along with several other media groups).

Thursday, November 17, 2016

Appellate Division remands "Brady letter" case. Seeks more detailed findings from trial judge.

Update:  Judge Johnson, in response to the remand, issued a December 20, 2016 Order and Decision.

Update:  Transcript of  December 19, 2016 hearing contains testimony by former Wildwood Crest Police Lieutenant Michael Hawthorne that he was a whistleblower who was punished for "saving the information that force Captain [David] Mayer to retire." Hawthorne's January 1, 2017 pro se brief is also on-line.  Important Note: Late this afternoon (01/16/17), I erroneously posted at the link above a draft, rather than the final version, of a brief that was filed with the Appellate Division by Michael Hawthorne.  I have since corrected the link so that it leads to the final, filed version of the brief.
On November 17, 2016, a two-judge panel of an appeals court directed Atlantic/Cape May County Judge Nelson C. Johnson for "clarification" on why he ordered disclosure of four letters from Cape May County Prosecutor regarding "major problems with [two Wildwood Crest police officers] ever testifying in a criminal proceeding."

At issue are four letters through which Prosecutor Robert J. Taylor advised Wildwood Crest Mayor Carl Groon that he would issue "Brady letters" if either Captain David Mayer or Lieutenant Michael Hawthorne  were to be witnesses in any criminal proceeding.   Brady letters, named after the 1963 Supreme Court case of Brady v. Maryland, are typically issued to criminal defendants to alert them when a police officer who will be a witness against them has a sustained record for having been untruthful in an official capacity.

Johnson found that the four letters were exempt from disclosure under the Open Public Records Act (OPRA).  In a May 8, 2015 decision, however, he found the four letters were disclosable under the common law right of access.  In a subsequent July 10, 2015 order, Johnson awarded the plaintiff's lawyer $45,690.76 in costs and attorney fees. 

A determination under the common law right of access involves a balancing of the requestor's (or the public's) interest in disclosure of the records against the government's need for confidentiality.  In making their common law right disclosure determinations, courts are guided by six factors set forth in the Supreme Court case of Loigman v. Kimmelman.

In today's decision, Appellate Judges Richard S. Hoffman and Amy O'Connor found that Judge Johnson did not give sufficiently detailed reasons supporting his rulings on each of the Loigman factors.  They gave him forty-five days to issue a supplemental opinion.

Sunday, November 13, 2016

Hudson judge rules that draft settlement agreement is disclosable under OPRA.

On November 4, 2016, Hudson County Judge Daniel D'Alessandro ruled that the City of Jersey City should have furnished an Open Public Records Act (OPRA) requestor with a handwritten settlement agreement that was signed prior to the requestor's OPRA request even though the handwritten agreement stated that it was subject to approval by the City Council at a subsequent meeting.

D'Alessandro also ruled that Jersey City must pay the plaintiff's attorneys fees and costs, the amount of which will be determined in subsequent proceedings.

D'Alessandro's is one of four recent court rulings weighing in on whether draft settlement agreements are public records prior to being formally approved and signed by all parties.  Judges in Passaic and Essex County agree with D'Alessandro while a judge in Mercer County does not.

This issue is important because several weeks or months may elapse between the time a binding settlement agreement is agreed to and the time that it is formally signed by all parties.  In the meantime, the public has a need to know how much money a government agency paid out to settle a lawsuit against it.

The lawsuit plaintiff, Libertarians for Transparent Government, was represented by Walter M. Luers of Clinton.

Monday, November 7, 2016

Middlesex judge orders release of police dash-cam video.

In an October 27, 2016 written opinion, Middlesex County Assignment Judge Travis L. Francis ordered the Township of Old Bridge to release a police cruiser's dashboard camera recording of former Carteret Borough Police Director Ronald Franz's February 23, 2016 arrest for Driving While Intoxicated (DWI).

Other than the video's disclosure, which is a hotly contested issue (as explained below), Judge Francis also ruled on two other important issues:  a) absent extraordinary circumstances, basic information about an arrest (known as "Section 3(b) information") must be released regardless of whether an "investigation in progress" or criminal investigatory record" exemption applies and b) a 2006 consent order required the Old Bridge Police Department, when responding to an OPRA request, to exercise its own discretion and not rely on the prosecutor's office's instructions.

Regarding the dash-cam video, there are, at the time of this writing, two conflicting, published Appellate Division decisions--North Jersey Media Group, Inc. v. Township of Lyndhurst and John Paff v. Ocean County Prosecutor's Office--that define the scope of the Open Public Records Act's Criminal Investigatory Records (CIR) exemption. Until the Supreme Court makes a definitive ruling, Judge Francis was permitted to choose which of the two cases he wanted to apply and he chose the Ocean County case. 

The CIR exemption applies only if two things are true: a) the requested record is not required by law to be made or maintained and b) the record pertains to a criminal investigation or related civil enforcement proceeding.  If either of those two prongs are false, then the record is not exempt as CIR. 

One of the differences between the the two cases is that Lyndhurst defines "law" narrowly to mean that the first prong is satisfied unless a statute, regulation, executive order or judicial decision mandates that the record be made or maintained.  The Ocean County case defines "law" more broadly, allowing lesser writings such as an Attorney General Directive to count as a "law" for the purposes of the CIR exemption.  Thus, more records are available under the Ocean County decision's definition than Lyndhurst's.

Old Bridge, in its denial of the request for the recording, followed Lyndhurst (Paff had not yet been decided when Old Bridge denied the request) finding that since no "law" (i.e. statute, etc.) required the dash cam recording to be made and because it pertained to an active, ongoing investigation by the Middlesex County Prosecutor's Office, it was exempt from disclosure.  Judge Francis, however, found that an order of the Old Bridge Police Chief, which required the cameras to activate automatically in certain cases (when the siren or emergency lights are activated, for example), was a "law" that required the videos to be made.  Judge Francis also ruled that the recording did not "pertain to" a criminal investigation because the underlying offense was a traffic violation (rather than a criminal matter) and because Old Bridge didn't prove that the video recording was taken only after the investigation began.

Separately, Judge Francis ruled that the "investigation in progress" exemption did not justify suppression of the video because disclosure would not be "inimical to the public interest" and because it likely qualified for disclosure before any investigation began.

The plaintiff in the case was Steven Wronko who was represented by CJ Griffin of Hackensack.