Tuesday, January 2, 2018

Court to decide whether to unlock docket and unseal records in special-needs elementary student's rape lawsuit.

On Friday, January 5, 2018, Somerset County Assignment Judge Yolanda Ciccone will hear a motion filed by three open government advocates who seek to at least partially unseal court records and unlock the court's docket of a lawsuit filed by a then fourth-grader in the Hillsborough school district who claimed that she was raped multiple times by her former elementary school principal.

The motion, filed by me, along with transparency advocates Donald Baldwin and Paula Baldwin, aims to get at least minimal docket information on a lawsuit filed on June 1, 2017 by a former Hillsborough Township (Somerset County) fourth-grade girl who, according to media reports, claims that she was raped "hundreds of times" by now-retired Woodfern Elementary School Principal Matthew Hoffman.  Currently, every document in the court's file is sealed and the case cannot be located on the Automated Case Management System (ACMS)--the civil court's on-line docket.

I first learned about the case's existence on September 18, 2017 when I visited the Somerset County Civil Division Manager's office for a routine record inspection.  While at the office, I examined a book of court reports that revealed that an "assault and battery" lawsuit was filed by Jane Doe.  After the window clerk denied my request for case documents, I made a formal, written request to the Trial Court Administrator for the order that sealed the file, a redacted version of the civil complaint and even innocuous documents such as cover letters that accompanied case filings and the court-generated notice that advised the parties of the "track" to which the case was assigned.  In an October 6, 2017 letter, Civil Division Manager Mary Braunschweiger denied my request in its entirety.

Later, Donald Baldwin discovered that the case was the subject of a July 26, 2017 New Jersey 101.5 article written by Sergio Bichao titled "Ex-Hillsborough principal raped 4th-grade girl 'hundreds' of times, lawsuit says."  That article reported that Hoffman, while a teacher in the Hopewell Valley Regional School District in the 1980's, was accused in a lawsuit of raping a young man over a four year period.  That accusation resulted in a $300,000 jury verdict against Hoffman in 2015.  According to Bichao's article, Hoffman retired at age 52 shortly after the Hopewell Valley student filed his lawsuit.  No criminal charges against Hoffman have arisen out of either alleged offense.  According to New Jersey pension records, Hoffman's final salary from Hillsborough was $129,724 and he receives a monthly pension of $4,745.

Our motion is being jointly opposed by Jane Doe and the Hillsborough school district.  The opposition paperwork argues that the file was unsealed and the docket was open from June 1, 2017 through to September 15, 2017 when Superior Court Judge Thomas C. Miller sealed both the file and the docket.  The opposition argues that the Baldwins and I should have opposed the sealing motion that Judge Miller decided in September and that it is too late for us to now challenge it.  They also argue that nothing short of a complete sealing of the records and a total lock-down of the docket will protect Jane Doe's privacy.  In our reply, we argue that we did not even know about the case when Judge Miller entered his order and that there should be a way, through use of pseudonyms, document redaction and other devices, for the public's interest in this case to be accommodated while still protecting Jane Doe's privacy.  Under court rules, the burden is on the parties who wish to keep the sealing order in place to show that "good cause" continues to exist for sealing the records.

The Baldwins and I fully respect the young plaintiff's need for privacy.  But, members of the public, especially Hillsborough taxpayers, have a legitimate interest in knowing whether Hillsborough school officials knew or should have known about Hoffman's alleged past conduct but turned a blind eye toward it.

According to Bichao's article, one of the defendants in the lawsuit is Susan Maglia, Hoffman's secretary, who sat outside Hoffman's locked office door during the alleged rapes and watched Hoffman walk the girl to her classes after the office visits.  And, former Hillsborough Superintendent Edward J. Forsthoffer, who is now the superintendent of the Bordentown Regional School District, claimed through his attorney that he and other Hillsborough officials "had no way knowing about the previous allegations because [Hoffman] had never been charged with any crime that would show up in a background check." 

The public has an interest in hearing testimony and seeing court records that could disclose whether Maglia, Forsthoffer and other school officials acted reasonably in protecting Jane Doe from harm.  The Baldwins and I believe that Judge Ciccone can balance the public interest in this case against Jane Doe's privacy needs in a way that accommodates both.

Friday, December 22, 2017

Evesham Councilman, wife sue MUA for failing to redact social security number from records disclosed under OPRA.

On December 21, 2017, a member of the Evesham Township (Burlington County) Council and his wife filed a pro-se lawsuit against the Evesham Municipal Utilities Authority (MUA) and the Authority's records custodian for improperly releasing the Councilman's social security number in response to an Open Public Records Act (OPRA) request.

In their lawsuit, Robert and Virginia DiEnna said that in December 2015 MUA records custodian Laura Puszcz released records that contained Robert's social security number in response to to Phillip Warren's OPRA request.  Councilman DiEnna said the MUA had his personal information because he was hired as an MUA employee in 2012.

The DiEnnas claimed that they did not become aware that Robert's social security number had been released until September 26, 2016.  They claimed that the disclosure of the social security number invaded their privacy and caused them emotional distress.

The DiEnnas' lawsuit is only a list of allegations. Nothing has been proven and the burden of proof remains on the DiEnnas.

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.

Charles R. Cohen v. City of Englewood et al, Docket No. BER-L-7144-17
Hon. Bonnie J. Mizdol, A.J.S.C.
December 21, 2017
Click here for the court's decision.

Summary:  The most intriguing part of Judge Mizdol's opinion is her remarks about time sheets prepared by an engineering firm that was under contract with Englewood.  Even though the City did not have the time sheets in its possession, Mizdol suggested that she would have required the City to retrieve them for the OPRA requestor because those time sheets "should have been on file with, or accessible to city officials because such access allows the governing body to 'perform the oversight function expected . . .'"  The internal quote was taken from the Supreme Court's holding in Verry v. Franklin Fire District No 1, 230 N.J. 285, 303 (2017).  Judge Mizdol didn't require Englewood to produce the time sheets in this instance because the OPRA request was "unartfully drafted" and did not specifically ask for them.

Wednesday, December 6, 2017

Lawsuit seeks to compel Salem County to pay OPRA attorney fee.

On June 27, 2017, the Government Records Council (GRC) ordered Salem County to pay my attorney $2,310 in fees after having previously found on April 25, 2017 that the County violated my rights under the Open Public Records Act (OPRA). The County has thus far ignored several requests to pay the fees necessitating a lawsuit to compel payment of the $2,310 plus additional fees and costs for having to bring the lawsuit.

The original GRC matter was Paff v. County of Salem, GRC Complaint No. 2015-342.  The new court matter is Paff v. Salem County, Docket No. SLM-L-222-17. Superior Court Judge David M. Morgan has issued an order requiring the County to appear in court on Friday, December 22, 2017 at 1:30 p.m. to show cause why it should not be required to pay the overdue fees.

My attorney is Ted M. Rosenberg of Moorestown and Salem County is being represented by County Solicitor Michael M. Mulligan.

Friday, December 1, 2017

3,974 lines of OAL open case data are now on-line in an Excel file.

On July 31, 2017, I reported that the Office of Administrative Law (OAL), in response to an Open Public Records Act (OPRA) request, disclosed an Excel file containing docket information on about 350 cases.  As I noted in my article, government agencies, in accordance with the Supreme Court's June 20, 2017 ruling in Paff v. Galloway, are now obliged to extract information from government databases in response to OPRA requests.

After writing my article, the OAL released an expanded list that contains docket information on all of its cases that were active on August 1, 2017.  The list, set forth in an Excel file which I've placed on-line here, contains 3,974 lines of data.  Since some are duplicates, this may represent about 2,000 separate cases.

To my knowledge, apart from the Excel file at the above link, the OAL has provided no method for members of the public to access its case docket.  Accordingly, cases are filed and adjudicated without anyone other than the parties and their lawyers knowing that these cases exist.

Some of the cases are of significant public interest, such as the State Board of Examiners cases.  These cases, represented by the code EDE in Column D, list the names of school teachers and administrators some of whom are contesting the suspension of their certificates. (Note: Column "D" of the table contains a three-character code that identifies the agency where the case originated. A table that lists each the three-character codes and its corresponding agency is on-line here.)  Some of those matters have public hearings scheduled that will take place during the next several weeks.  For example, someone named David C. Raffo is listed to appear before Administrative Law Judge John Scollo in Newark on January 10th and 11th of 2018.  A Google search on Raffo's name shows that the Board of Examiners issued an Order to Show cause to him at its March 3, 2017 meeting to determine "why his certificate(s) should not be revoked based on the level and nature of the conduct."

While the database and Internet searches do not reveal the nature of Raffo's alleged underlying conduct, an interested member of the public or media could submit an OPRA request for the case documents and perhaps glean an understanding of the issues and attend the hearing to observe the proceedings.  While in a perfect system all of public case information would be on-line, this Excel table at least provides members of the public and press with a roadmap that they can follow to obtain that information.

Wednesday, November 29, 2017

An open letter to Monmouth County Assignment Judge Lisa P. Thornton

Even though I ultimately received the records that the plaintiff's attorney sought to have sealed, public access to those records was delayed for about a month.  I advocate not only for access to non-exempt government records but for prompt access to those records.  Accordingly, I have brought my concerns regarding how access to these court records was improperly delayed to both Judge Thornton and the public by way of this open letter.
November 29, 2017

Dear Judge Thornton:

RE: Snyder v. Gramiccioni, Docket No. MON-L-2856-16

Thank you for permitting me to appear before the court telephonically on November 17, 2017 to argue against the plaintiff's motion to seal the court record. I have had a chance to review the documents that your office sent me yesterday and would like to bring to the court's attention a rule violation that I believe worked to impermissibly deprive the public of information about the captioned matter for over fifteen months.

The rule at issue is a July 1, 2010 amendment to R.1:38-11 that added the following paragraph (d):
Documents or other materials not exempt from public access under Rule 1:38 may not be filed under seal absent a prior court order mandating the sealing of such documents, and should not be submitted to the court with the motion, which may be filed on short notice, requesting an order to seal.
The amended rule establishes that a normally non-exempt record, such a civil complaint, may not be filed under seal unless a prior court order that seals the record has already been entered.  Thus, if plaintiff's lawyer, Mr. Cushane, wished for his client's complaint to be sealed, he ought to have first filed a motion that set forth the "good cause" requirements of R.1:38-11.  Then, if the motion was granted, he could have filed his client's complaint under an assurance that it would remain under seal unless and until an order to unseal it was entered.  If the motion to seal was denied, Mr. Cushane and his client could elect either to proceed publicly or abandon the lawsuit, depending on the level of importance they assigned to the client's privacy.

What Mr. Cushane did, however, was file both the amended complaint and the motion to seal simultaneously on August 16, 2016. (Note: The original complaint, filed on August 4, 2016, was correctly rejected by the Court because it impermissibly identified the adult plaintiff by his initials rather than his full name.)  Then, the motion to seal remained pending for more than sixteen months until it was finally adjudicated on November 17, 2017.

Mr. Cushane's motion filing, which violated the rule's admonition (i.e. "[records for which sealing is sought] should not be submitted to the court with the motion"), also had the unfortunate effect of being treated by the Monmouth County Prosecutor's Office (MCPO) as the equivalent of a sealing order.

On October 23, 2017, my non-profit organization submitted an Open Public Records Act (OPRA) request to the MCPO for records that were filed in this case.  Even though no sealing order had yet been entered, Jennifer Lipp, the MCPO's records custodian, denied the OPRA request on the strength of Mr. Cushane's pending motion.  In her October 23, 2017 e-mail, she wrote: "I have a duty to protect people’s privacy interests including medical, mental health, substance addiction, domestic violence, among other privacy interests.  The motion is pending.  Unless Judge Thornton tells the lawyers involved that she is not going to seal the record, I am not going to release them.  Knowing there is a pending motion before the Assignment Judge could also be an ethical violation for me.  Once Judge Thornton rules, I will let you know."

In other words, Ms. Lipp treated the pending motion as a fait accompli even though it had not yet been adjudicated.  Had Mr. Cushane abided by R.1:38-11(d), the sealing motion would have been determined shortly after the August 2016 filing and Ms. Lipp's grant or denial of the OPRA request would have been dictated by the court's decision to grant or deny that motion.

At this point, I seek no remedy because, even though my access to these records was delayed for about a month I have now received them.  I write only to inform the court of the denials and delays that the public faces when R.1:38-11 is disobeyed.  I ask that the court keep my concerns in mind going forward.

Very truly yours,

John Paff

cc. Thomas Cushane and Jennifer Lipp

Court file released. Turns out case was filed by a former Marlboro police sergeant who wants to be declared "psychologically fit."

On November 7, 2017, I wrote an article titled "Who is T.S. and why is he or she suing the Monmouth County Prosecutor and seeking to have the lawsuit sealed by the court?"  After a November 17, 2017 hearing, at which I participated both by filing a certification and letter brief and by arguing telephonically, Monmouth County Assignment Judge Lisa P. Thornton denied the sergeant's motion to seal the file and released most of the court filings to me.  We now know that the suit was filed by a fired Marlboro Township police sergeant who seeks to be declared "psychologically fit to be conditionally rearmed and to conditionally return to full duty" after having reportedly been cleared by two psychologists who examined him after two separate incidents.

The essential facts, as alleged in former Marlboro Sergeant Timothy Snyder's lawsuit, are that Monmouth County Prosecutor Christopher J. Gramiccioni twice disallowed Snyder from possessing a firearm.  The first time was on May 10, 2015 after Snyder's arrest for domestic violence--charges that Snyder claimed did not result in a conviction.  The second time was on October 16, 2015 after Snyder was suspended by Marlboro Police Chief Bruce Hall when an "officer-in-crisis" report was filed after an incident that occurred in Snyder's home.  The object of the lawsuit is to compel Gramiccioni to return Snyder's firearms and accept recommendations, made by separate psychologists who examined Snyder after each incident, that Snyder is fit for duty.  Snyder has a separate, administrative matter pending before the Office of Administrative Law that contests Marlboro's reported decision to fire him effective June 3, 2016.  This is only a summary. The court filings are available for those who want more details.

Snyder originally filed his lawsuit in August 2016 using only his initials, T.S., to identify himself.  Judge Thornton quickly rejected this attempt and required Snyder's lawyer, Thomas A. Cushane of Vineland, to refile the suit using Snyder's full name.  (Unfortunately, Thornton's decision did not cause the court's publicly-accessible, electronic docket to be updated.  The docket, known as the Automated Case Management System (ACMS), identified the plaintiff as only "T.S." until mid-November 2017.)  Also during August 2016, Cushane filed a motion to "seal any and all court records—including the complaint itself--in light of the extremely sensitive nature of the psychological reports and evaluations referenced at length therein as well as Snyder's public standing in the community as a municipal law enforcement officer."

In support of his motion to lock down the entire file, Cushane argued that while the public has a common-law right to inspect court records, the public's confidence in his client's ability to function as a police officer would be undermined if members of the public had "unfettered access" to documents filed in Snyder's lawsuit. The prosecutor's office argued that Cushane's position was "too broad" and that if "the Court were to accept that, then it would have to seal the records in every case where an officer's reputation or ability could be called into question."

Ultimately, Judge Thornton ruled that the court filings be released to the public while Snyder's psychological reports are sealed.