Saturday, August 20, 2016

Lawsuit tests whether "Intergovernmental Transfer Agreements" are disclosable under OPRA.

On Thursday, October 27, 2016, 10:30 a.m., Mercer County Assignment Judge Mary C. Jacobson will hear argument on whether "Intergovernmental Transfer Agreements"--documents that are completed when civil service employees transfer from one job to another--are public under the Open Public Records Act (OPRA).

In Darnell Hardwick v. Civil Service Commission, et al, Docket No. MER-L-1638-16, Hardwick requested the transfer applications submitted by five police officers who were terminated by the Camden City Police Department and then re-hired by the Camden County Metro Police Department. Civil Service Commission Records Custodian Peter J. Lyden, III denied Hardwick's request in its entirety claiming that the records were exempted by OPRA's personnel records exception. 

But, Walter M. Luers, Hardwick's lawyer, argues that the Commission should have released redacted versions of the records because an exception to OPRA's personnel records exception requires certain basic information about employees to be disclosed.  Luers argues that the Commission, as it has done in the past, should disclose the applications "to the extent that they show payroll information, employee names, titles, positions, dates of separation, etc."  Luers characterizes the transfer applications as being "ministerial in nature, [containing] basic salary and employee title information, and [which] do not contain sensitive information, other than personal information that can (and has been) redacted in the past."

The hearing, which is open to the public, will be held in the New Criminal Courthouse, 400 S. Warren Street in Trenton.

Tuesday, August 9, 2016

Unpublished trial court OPRA opinion.

Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals.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 I think that it's important that court opinions, even if they are not precedential, are easily accessible for future use.

Fran Brooks v. Township of Tabernacle, et al.
Burlington County, Docket No. BUR-L-43-15
Hon. Ronald E. Bookbinder, A.J.S.C.
June 21, 2016
Click here for the court's decision.

Summary:  Requestor entitled under both the Open Public Records Act (OPRA) and the common law right of access to financial information contained in documents submitted to Tabernacle Township by a property owner in support of his application for farmland assessment. Township to pay requestor's attorney fees and costs.

Note: Judge Bookbinder's opinion is labeled as "tentative."  My understanding is that despite this label, the opinion was later accepted as "final" by the court.

OPRA lawsuit seeks to find out if prosecutor's employee who allegedly failed drug test was forced to resign.

N.J.S.A. 47:1A-10 requires public employers to disclose the following information regarding their employees: "name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received."  On September 16, 2016 at 1:30 p.m. Ocean County Superior Court Judge Mark A. Troncone will hear an Open Public Records Act (OPRA) case that seeks to determine how much information a government employer who forces an employee to resign under threat of removal must disclose in response to an OPRA request for the "reason" for the employee's separation from employment.

After receiving a tip that an employee who worked in the evidence room at the Ocean County Prosecutor's Office was forced to resign after failing a random drug test, Libertarians For Transparent Government, a NJ nonprofit corporation (LFTG) sought the "reason" underlying the employee's separation from employment.  LFTG believed that if it could confirm that the evidence room worker, referred to as "John Doe" in the lawsuit, was fired because of failing a drug test, that fact would be of legitimate interest to the public, particularly criminal defendants who were being prosecuted in Ocean County.

In response to LFTG's OPRA request, the Ocean County Prosecutor's Office disclosed only that John Doe had resigned, provided the effective date of resignation and refused to say whether the resignation was voluntary or compelled.  LFTG filed a lawsuit seeking the real reason underlying Doe's resignation.  In her brief, LFTG's attorney CJ Griffin of Hackensack, argued that it is not sufficient for a government agency to simply say that an employee "resigned" in cases where the resignation was forced by a threat of dismissal. 

Tuesday, July 19, 2016

Fourth judge asked to weigh in on non-residents' OPRA rights.

Three trial level judges have ruled on the question of whether non-residents have an enforceable right to file Open Public Records Act (OPRA) requests with New Jersey governmental agencies.  So far, Burlington County Assignment Judge Ronald E. Bookbinder and Ocean County Judge  Mark A. Troncone have ruled that they do and Atlantic/Cape May County Judge Nelson C. Johnson has ruled that they do not.  And, at least one of those cases is under appeal

In a June 24, 2016 lawsuit, Peter M. Heimlich, represented by CJ Griffin of Hackensack, as asked Gloucester/Salem/Cumberland County Assignment Judge Georgia M. Curio to rule on the same issue.  The case, Heimlich v. Educational Information & Resource Center, et al, Docket No. GLO-L-779-16 is currently pending a hearing for which no date has yet been set.

Monday, July 18, 2016

NJ Supreme Court grants certification in John Paff v. Galloway Township.

On July 15, 2016, the New Jersey Supreme Court granted certification (i.e. agreed to review) an April 8, 2016 Appellate Division ruling that held that the Open Public Records Act (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."

For those who wish to read the legal arguments that led to the Supreme Court's acceptance of the case, they are linked below:


Thursday, July 14, 2016

Lawyer to blogger: "Immediately cease and desist in your publication" of my client's confidential settlement agreement with a public agency.

On July 12, 2016, I published "Sparta school board confidentially paid $50,000 to settle former custodian's wrongful termination lawsuit."  I distributed a link to the article to area media (which resulted in Eric Obernauer of the New Jersey Herald publishing "Sparta school board settles suit with former custodian" on July 14, 2016) as well as to the lawsuit plaintiff's attorney.
Today, I received the following e-mail from the attorney who represented the former school custodian in the wrongful termination lawsuit:
Mr. Paff:

You have published what you know to be a confidential document without the authorization of the parties. I do not know how you obtained the agreement. You must immediately cease and desist in your publication of the agreement.

Very truly yours,

Mark J. Brancato
MCHUGH & BRANCATO ATTORNEYS LLP
104 Elcock Avenue
Boonton, NJ 07005
Even though I have published over four hundred articles regarding settlements--many of them marked "confidential"--I have never received a "cease and desist" letter (and its implied threat of a civil action against me if I refuse) from anyone.

It has always been my understanding that the "confidentiality agreements" placed in settlement agreements bind only the parties to that agreement, not to media or members of the public who obtain those "confidential" settlement agreements through Open Public Records Act (OPRA) requests.  Indeed, the confidentiality clause in Acevedo's settlement agreement, set forth in full below, expressly states that it only applies to "Releasor" (i.e. Acevedo).
CONFIDENTIALITY. The Parties agree that the terms and conditions of this settlement and the claims upon which it was based shall remain confidential to the extent permitted by law. Releasor agrees that he will not publish, in any manner, or attempt to publish the terms of the settlement. The Parties agree that any request for information concerning the terms and conditions of this settlement and the claims upon which it is based will be governed by the Open Public Records Act, N.J.S.A. 47:1A-1, et seq. Releasor agrees not to discuss this case or settlement with the media, or third parties, other than immediate and trusted family members, medical providers or accountants and Releasor agrees to instruct her family members, accountants and attorneys of this confidentiality requirement.
Beyond the fact that I am not bound by the "confidentiality" provision within the agreement, nothing in my article could be construed to defame Acevedo (or anyone else), cast him a false light or violate his privacy.  And, even if I republished some false statement contained the lawsuit, such republication would almost certainly be privileged under the fair report or fair comment privileges.  In sum, I find no tenable legal basis for Mr. Brancato's demand.

Finally, as a matter of public policy, plaintiffs who recover money from public agencies cannot be allowed to keep the fact that those payments were made or their amounts from the taxpayers who funded them. If it were otherwise, taxpayers would be unable to judge whether elected officials' settlement decisions were reasonable or foolish or possibly corrupt.

Mr. Brancato's "cease and desist" demand is offensive and anathema to those who value governmental transparency.  Perhaps Mr. Brancato should "cease and desist" from attempting to suppress reports about public affairs.

Saturday, July 2, 2016

Judge: State must release names of cops who shot juvenile in Trenton.

In a June 30, 2016 written decision, Mercer County Assignment Judge Mary C. Jacobson held that the Attorney General's office and other law enforcement agencies must release the names of officers from the State Police and Mercer Sheriff's Department who fired fifteen shots at Radazz Hearns, then 14, on August 7, 2015.  In her 79-page ruling, Jacobson found that the State's "generalized concerns" for the safety of law enforcement officers, does not trump the public's rights under the Open Public Records Act (OPRA).  She did allow, however, that had the State "shown that threats to unnamed police officers had been made . . . the court may very well have" ordered that the officers' names be withheld.

In the same decision, Judge Jacobson also ruled in two cases filed by Richard Rivera.  One sought the names of Troopers involved in a fatal police shooting of Daniel Wolfe and the other sought the names of Troopers who used pepper spray, tear gas and loud noise emitters to disperse a crowd during radio station Hot 97's June 7, 2015 Summer Jam concert at Metlife Stadium.  River also sought Use of Force Reports that were generated as a result of those incidents.  Jacobson ruled that Rivera was entitled to the officers' identities but "reluctantly" ruled that the Use of Force Reports were exempt as criminal investigatory records.

Both Paff and River were considered "prevailing parties" and entitled to recover their court costs and attorney fees from the public agency defendants. Judge Jacobson gave the State until July 20, 2016 to release the Troopers' names so that it had time to consider whether or not to file an appeal.

I was ably represented in the case by CJ Griffin of Hackensack.