Wednesday, January 27, 2016

OPRA lawsuit seeks "informal" correspondence that revealed Bayonne lawsuits' settlement amounts.

On Friday, March 4, 2016 at 9 a.m. Hudson County Superior Court Judge Joseph A. Turula will hear my Open Public Records Act (OPRA) case against the City of Bayonne.  See, Paff v. City of Bayonne et al, Docket No. HUD-L-5203-15.  This is the lawsuit discussed in Jonathan Lin's January 27, 2016 Jersey Journal article and I am being represented by CJ Griffin of Hackensack.

I maintain a blog called NJ Civil Settlements which, as its name implies, reports on settlements of lawsuits against government agencies and officials.  Learning whether, when and how these lawsuits have concluded is sometimes difficult, especially since many of the settlement agreements contain confidentiality clauses that prevent the parties from revealing the amount of settlement or even the existence of a settlement agreement.

After learning (or suspecting) that a such case has settled, my procedure is is to submit an OPRA request for the settlement agreement.  Since the Appellate Division's 2009 decision in Asbury Park Press and Paff v. Monmouth County (and the New Jersey Supreme Court's 2010 affirmance), a settlement agreement must be disclosed even if it contains a confidentiality agreement.

In many cases, however, even though the court has marked the case "settled," I am told that the settlement agreement cannot be disclosed because it had not been "finalized" or "approved" by all of the lawsuit's parties.  Sometimes, I am required to wait several weeks or even two or three months for these formal settlement agreements to be "finalized."

OPRA guarantees that non-exempt records be made promptly available, not just available whenever it is convenient for the government.  And, the public's interest in knowing a lawsuit's settlement amount is greatest when the settlement is consummated and the value decreases as time passes.

At issue in my case against Bayonne are two separate lawsuits against the City, one filed by a person named Glunk and the other by a person named Rios.  According to November 17, 2015 letters from Glunk's and Rios' lawyer, Bayonne informed the lawyer that proposed settlements, tentatively agreed to in August and September, were "approved by the powers that be" on September 24, 2015.

On October 25, 2015, I submitted an OPRA request to Bayonne seeking a copy of the settlement agreements or, if they had not yet been finalized, "all informal agreements, draft agreements, correspondence, e-mails, etc. . . . that disclose the settlement amount and/or other settlement terms."  I was careful to exclude from my request "internal correspondence between [Bayonne] and/or its agents/attorneys/insurers."  Rather, I wanted only settlement correspondence between the parties.

After the City improperly granted itself an extension, assistant city lawyer William P. Opel, in a November 9, 2015 letter, informed me that a) no formal settlement agreement yet existed and b) that "any correspondence, electronic or otherwise, between counsel for the City and counsel for the plaintiffs would be exempt from disclosure under both the attorney client privilege and the deliberative material exemption."

Remember, however, that Bayonne's "powers that be" had already agreed to the essential terms of settlement about six weeks earlier.

Notice the trickiness in Opel's letter.  He doesn't say whether or not any correspondence between the parties existed.  Rather, he stated that if such correspondence existed, I cannot have a copy of it because any such correspondence is exempt from disclosure.

Fortunately, Opel's mealy-mouthed response is not permitted by OPRA.  For all but the most sensitive of records, the records custodian must identify the records that exist and then, for each record for which access is denied, give a specific basis on why it's being denied. A custodian's refusal to identify or even acknowledge the existence of responsive records to which access is denied is unfair. And, I've won cases where it turned out that there really were no responsive records but the custodian refused to tell me that.  See Paff v. Stafford, for example.

According to the Jonathan Lin's January 15, 2016 Jersey Journal article, we now know that Glunk's and Rios' lawsuits settled for a total of $335,000.  This late revelation, however, does not moot my lawsuit.  My argument is that Opel was under a duty, when he authored his November 9, 2015 letter, to advise me of the existence of and provide me with copies of any informal correspondence between the parties that set forth the settlement terms and amounts.  In sum, I believe that I should have known on November 9, 2015 that which the Jersey Journal reported on January 15, 2016.

Friday, January 22, 2016

Burlington Judge: OPRA is not restricted to state residents.

In an October 2, 2015 decision, Burlington County Assignment Judge Ronald E. Bookbinder ruled that a requestor does not have to reside in New Jersey in order to use and enforce his or her rights under the Open Public Records Act (OPRA).

In a written decision in Scheeler v. Atlantic County Municipal Joint Insurance Fund, et al, Docket No. BUR-L-990-15, Bookbinder said that even though N.J.S.A. 47:1A-1 states that the purpose of OPRA is to benefit the "citizens of this State," there are "many operational provisions of OPRA in which the phrase 'any person' is used, with no mention of a citizenship requirement."  He also reasoned that New Jersey citizens benefit from the transparency and efficiency that OPRA fosters regardless of whether a request is made by a resident or nonresident.  Finally, Judge Bookbinder ruled that a citizenship requirement "would be incredibly easy to evade" because OPRA requires custodians to honor anonymous records requests.

The Joint Insurance Fund had denied access to "Confidential and Privileged Memos" pertaining to legal invoices that Scheeler had requested.  Bookbinder found that Scheeler was entitled to redacted versions of those memos and awarded him $18,326.10 in legal fees and costs.  Scheeler was represented by CJ Griffin of Hackensack.  Since the fee order was entered on December 24, 2015, the Joint Insurance Fund has until early February to appeal.

Thursday, January 21, 2016

OPRA's applicability to volunteer fire companies.

I am aware of three cases that shed light on whether volunteer fire companies are subject to the New Jersey Open Public Records Act.

Mat Stern v. Lakewood Volunteer Fire Department, et al, Docket No. OCN-L-2160-14.

In a February 6, 2015 written opinion, former Ocean County Assignment Judge Vincent J. Grasso ruled that four volunteer fire companies in Lakewood Township that operated under the Lakewood Fire District "are instrumentalities within the Fire District and, therefore, are public agencies subject to OPRA."  In a later opinion, Grasso ruled that the fire companies were liable to pay Stern's lawyer $6,580 in counsel fees and costs.  The fire companies appealed Grasso's ruling and Stern cross-appealed from Grasso's decision to substantially reduce the amount of attorney fees requested.  The Appellate Division docket number is A-005085-14T2, briefs have been filed for both sides and a decision by the Appellate Division will probably be issued sometime during 2016.

In the Matter of Petition of the Tabernacle Fire Company #1, Inc., Docket No. BUR-L-1398-15.

In an October 28, 2015 order, Burlington County Assignment Judge Ronald E. Bookbinder ruled that "Tabernacle Fire Company #1 is a public agency within the meaning of the Open Public Records Act."  Bookbinder's order was based upon an October 8, 2015 "tentative" opinion in which he found that "the Fire Company is the instrumentality through which the Township of Tabernacle performs the traditional government function of fire fighting."  The fire company has not appealed from Bookbinder's ruling and the time for filing an appeal has expired.

Robert A. Verry v. Franklin Fire District 1 (Somerset), Government Records Council Complaint No. 2013-196.

In its April 29, 2014 Interim Order, the Government Records Council found that "because Millstone Valley Fire Department is a member of the Franklin Fire District No. 1 (Somerset County) . . . and thus serves a governmental function under the supervision and control of the Franklin Fire District No. 1, it is a public agency for purposes of OPRA."  The Fire District has appealed from that ruling and Docket No. A-003635-14 has been assigned to the appeal. Briefs have been filed by all parties and a three-judge Appellate Division panel heard oral argument on January 4, 2016.  The Appellate Division's decision is expected shortly.

Saturday, January 9, 2016

Ocean City Business Administrator violated e-mail policy.

Like many municipalities, Ocean City (Cape May County) has a written policy governing employees' use of e-mail.  The third page of Ocean City's policy states:
All email, voicemail and Internet messages (including any technology-based messaging) are official documents subject to the provisions of the Open Public Records Act (N.J.S.A. 47:1A-1). Employees of the City of Ocean City are required to use the assigned municipal email account for ALL City business and correspondence. The use of private email accounts for ANY city business or during business hours is strictly prohibited.
The seventh page of the policy shows that City Business Administrator James V. Mallon signed it and acknowledged that he read and understood it.  Yet, the City's response to my recent Open Public Records Act (OPRA) request shows that Mallon has violated the policy.

In her January 4, 2016 OPRA response, City Clerk Sheila Cottrell disclosed redacted versions of five e-mails to which Mallon was a party.  Three of those e-mails show Mallon communicating about Ocean City's drug and alcohol policy with City Labor Counsel Mark Ruderman via his personal Hotmail account.  The other two e-mails show Mallon using his municipal e-mail to communicate about City business with Mayor Jay A. Gillian, Council member Antwan L. McClellan and Chief Financial Officer Frank Donato.

The three July e-mails constitute a clear violation of the City's policy.  In her response to my OPRA request, Cottrell, apparently aware of the violation, stated:

In response to your bringing this concern to our attention, the appointing authority has taken action reasonably calculated to insure that the City's policy will not be violated by the individuals involved in the future.

What "action" the city took, however, was not disclosed.

Forbidding employees from using their personal e-mail accounts to discuss City business is sound policy.  The mischief that arises when employees use their personal e-mail accounts for municipal business is illustrated by Cottrell's response to paragraph 3 of my OPRA request, which sought official e-mails that Mallon may have received on his personal account during several days in November and December 2015.  Cottrell wrote:
Mr. Mallon personally reviewed his emails for documents responsive to this request and no documents responsive to this request exist.
Clearly, the government employees should not be relied upon to search, without oversight, their personal e-mail accounts for those which are responsive to an OPRA request.  The temptation to delete or ignore responsive e-mails is simply too great.

Tuesday, December 29, 2015

Tinton Falls Police Lieutenant's Internal Affairs record partially revealed.

John A. Scrivanic
Tinton Falls Police Chief
On November 23, 2015, I blogged about Tinton Falls Police Lieutenant Kevin Pierson settling his whistleblower lawsuit against the Borough for $527,500.  I subsequently learned of another lawsuit, filed by Tinton Falls Officer Thomas Dennehy, that shared some of the same alleged facts contained in Pierson's lawsuit.  (Dennehy's lawsuit is still active as of this writing.)

Paragraphs 90 and 91 of Dennehy's lawsuit, set forth below, allege that Tinton Falls Police Lieutenant Dean Duane, who was hired by the Department in 1989 and who made $168,719 in 2015, was involved in three incidents that resulted in Internal Affairs files being opened.

90. Defendants also promoted Dean Duane, an officer with an extensive and significant history of physical and verbal altercations implicating his fitness for duty, including the following: (a) a physical altercation at work with a co-worker in or about 2004; (b) an off-duty incident where the officer attempted to hang onto the bus when it pulled away, followed the bus, and thereafter engaged the bus driver in a verbal altercation; and (c) an on-the-job incident in or about September 2010 wherein Duane slapped Plaintiff in the face.
91. Upon information and belief, on or about January 4, 2011, Duane punched a handcuffed sixteen-year-old juvenile in the face after responding to a call. Upon information and belief, the juvenile received a black eye and a broken nose and, the juvenile's mother has initiated the process to file an Internal Affairs (IA) complaint against Duane.
On December 4, 2015, I filed an Open Public Record Act (OPRA) request for documents that would prove or disprove the existence of these Internal Affairs matters involving Lieutenant Duane. On December 22, 2015, I received a comprehensive response from the Borough.

Many of the records that were responsive to my request were denied due to various exemptions.
Those records are described in a Vaughn Index that was provided to me by the Borough.  The remaining records, as well as the Vaughn Index itself, however, demonstrate that Lieutenant Duane was involved in the following three IA matters:

IA File 2008-08 (School bus incident).

According to a police narrative report, an unnamed school bus driver reported a September 16, 2008 confrontation with Duane to police.  According to the driver's report, Duane stood "in the middle of the road" and attempted to stop the bus after the driver apparently did not pick up a child who "was laying in the driveway and wouldn't get on the bus."  The driver claimed that after he refused to let Duane on the bus and started to drive off (because the driver "didn't know what [Duane] was going to do"), Duane "jumped onto the bus and was hanging from the passenger side mirror."  The driver said that Duane met him at the school and "attempted to confront him."  There is no indication of how the IA matter was resolved.

IA File 2010-05 (Slapping Dennehy in face).

No records were provided in response to my request.  But, the second page of the Vaughn Index indicates that eight pages of "correspondence, memoranda and witness statements" regarding the incident exist but were determined to be exempt from disclosure.

IA File 2011-02 (Punching juvenile in face).

Police narrative reports filed by Duane and another officer state that on January 4, 2011 Duane, after having handcuffed a sixteen year old boy who allegedly had taken several different drugs, "punched him in the face with [his] right hand in an effort to control him."  While difficult to read, a July 18, 2011 letter from Monmouth County Assistant Prosecutor Gregory J. Schweers closed the IA file at least in part because of the boy's refusal to cooperate with the investigation.

Monday, December 28, 2015

Thirty-day retention limit established for government video surveillance recordings.

At its September 17, 2015 meeting, the State Records Committee approved changes to state, county and municipal Records Retention Schedules requiring routine video surveillance recordings to be retained for a period of thirty days.  The requirement covers "real-time footage of buildings, grounds, and physical properties that are owned or controlled via leases or other contractual arrangements by the" government agency.  The thirty-day period is extended, however, if an incident, such as a slip and fall, motor vehicle accident or crime, is captured on the footage.  In such a case, the agency must defer to appropriate law enforcement record retention schedules.

I became interested in this issue after Washington Township (Gloucester County) Clerk Jill McCrea denied my request for surveillance recordings because the Township's cameras automatically re-recorded and thus overwrote videos every seven days.  When I questioned Gloucester County Municipal Clerks Association President Patricia A. Frontino about the propriety of such a short period of video retention, she wrote in an April 21, 2015 e-mail: "As you already know, the State Records Council [sic] has no requirement for the amount of time a video surveillance recording is to be retained.  Therefore, each municipality is left to establish their own time."

Not satisfied with Frontino's response, I reached out to John Mitch who is president of the Municipal Clerks' Association of New Jersey.  Mr. Mitch informed me that the State Records Committee was actively considering a thirty-day retention period.

According to the State Records Committee minutes, the New Jersey Department of Transportation tried to get a waiver from the thirty-day requirement based on its belief that its current video equipment lacked "the capacity to store images beyond 7 days."  The waiver request was denied and Records Committee member Joseph Klett, who serves as Chief of State Archives, remarked that granting this waiver would undermine the whole schedule.

Friday, December 18, 2015

Only OPRA requestors, not custodians, are allowed to initiate OPRA actions.

In a December 18, 2015 published, thus precedential decision, the Appellate Division of the New Jersey Superior Court held that:

1. OPRA grants the right to sue only to the records requestor. Thus, a records custodian may not sue a records requestor in order to enforce the custodian's asserted right to withhold records.

2. Similarly, but for different reasons, a custodian cannot sue a requestor to establish that records are not available to a requestor under the common law right of access.

3. Both OPRA and the common law require disclosure of documents containing the name of a firefighter who applied for financial relief from the New Jersey State Firemen's Association and its Local relief association and the amount of the relief award.  This ruling is based on the specific facts of this case which involved relief payments made to a volunteer firefighter who was fired from his Township job after he "was found to have viewed pornographic images on a fire district computer."  It does not grant access to the names and amounts of relief received by any other relief applicants.

The opinion in this case, Jeff Carter v. John Doe, is on-line here.