Monday, May 4, 2015

Let's end government agencies' preemptive OPRA lawsuits against requestors.

The Open Public Records Act (OPRA) requires government agencies to pay the attorney fees of requestors who successfully sue them for disclosure of government records.  The legislature reasoned that the absence of a mandatory attorney fee-shifting provision would give government agencies--who have taxpayer funds to pay attorneys--too much of an advantage over average citizens who pay their lawyers out of personal funds.

Recently, government agencies, in an apparent attempt to circumvent this legislative design, have begun to file lawsuits against citizen requestors before those requestors are given a chance to decide whether they wish to sue the agency under OPRA. The Middlesex County Prosecutor's Office's (MCPO) recent deployment of this tactic will be heard in New Brunswick by Middlesex County Assignment Judge Travis L. Francis on Wednesday, May 20th at 9 a.m.

In this case, two newspapers submitted OPRA requests to the MCPO for recordings of 911 calls to Old Bridge police regarding a 75 year old man who allegedly attacked a family member with knife on January 14, 2015.  According to news reports, the man, Talbot Schroeder, was fatally shot by officers after he allegedly would not put down the knife.

After denying the newspapers' records requests, the MCPO filed a lawsuit seeking a court order that would, in effect, ratify its decision to deny access to the recordings.   Although the two newspapers ultimately filed their own lawsuits to obtain the recordings, the MCPO's lawsuit was filed before the newspapers' suits.

On-line here is a copy of a March 30, 2015 brief filed by Thomas J. Cafferty, attorney for one of the newspapers.  Cafferty's brief, in my view, clearly and persuasively sets forth the reasons why government agencies should not be allowed to file these preemptive OPRA lawsuits.  Among these reasons is that such lawsuits improperly force records requestors to litigate even if they never intended to file a lawsuit seeking disclosure of the denied records.  Cafferty's brief goes on to state that
Allowing a public agency to initiate a proceeding has an even more profound effect - an effect that may well be intended by public agencies. Placing the requestor in the position of defendant not only improperly shifts the burden of proof, but it also prevents the requestor from recovering attorneys' fees, despite a judicial determination that the records are accessible under OPRA. OPRA provides that "a requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee." N.J.S.A. 47:1A-6. This attorney fee provision would not be available to the Newspaper in the instant action.
The MCPO, like several other agencies who employ this tactic, posit that the question of whether the agency pays a requestor's attorney fees turns on which party gets to the courthouse first.  This viewpoint is in direct opposition to N.J.S.A. 47:1A-6, a provision within OPRA, that states that "[t]he right to institute any proceeding under this section will be solely that of the requestor."

Hopefully, Judge Francis will rule against the MCPO's position and help put an end to these preemptive OPRA lawsuits.

Sunday, May 3, 2015

Sealing of OPRA case turns out to have been in error.

On April 30, 2015, I blogged about the Middlesex County Superior Court's sealing of an Open Public Records Act case.  I visited the Civil Division Manager's Office in New Brunswick on both Thursday, April 30, 2015 and Friday, May 1, 2015 and am happy to report that the matter has been resolved and that Docket No. MID-L-1217-15 is now available and searchable on the Court's Automated Case Management System (ACMS).

Below is my e-mail to Assistant Civil Division Manager Ian Ratzlaff that gives a detailed account of why the file was sealed.  The short story is, however, that it was sealed in error.

May 3, 2015
Ian Ratzlaff, Assistant Division Manager
Middlesex County Superior Court Civil Division
56 Paterson St
New Brunswick, New Jersey
RE: Sealing of Docket No. MID-L-1217-15
Dear Mr. Ratzlaff:
Thank you for your voice-mail on Friday. By copy of this e-mail, I also wish to thank Team Leader Andrew Garval for speaking with me about the captioned matter.
By way of background, on April 15, 2015, I found the captioned Open Public Records Act (OPRA) case on the "daily sheets" maintained in the Civil Division Manager's office.  When I later entered the docket number into the Automated Case Management System (ACMS), I was informed that the file was "sealed."  This prevented me, or any other member of the public, from getting any information regarding the case from the on-line system.  Moreover, had I searched by party name, all information about the case, including its existence, would have been suppressed.
Noting the irony of an OPRA case being sealed, I visited your office on April 30, 2015. The gentleman who assisted me said that he would retrieve the file from Assignment Judge Francis' office, review it and let me know which, if any records, I could inspect. He called me the next day and told me that I could come down to the office and review the entire file.
Upon review, I was able to determine that the matter underlying Docket No. MID-L-1217-15 was filed on March 2, 2015 by the Middlesex County Prosecutors's Office (MCPO) in an attempt to preempt OPRA suits that were later filed against that Office by two newspapers.  The MCPO styled its original filing as a "Motion for a Protective Order."  The manner in which the MCPO labeled its filing apparently caused your office to immediately "seal" the file even though no sealing order had been entered by the court.  One of the newspapers' opposition brief, on-line here, sets forth the facts and procedural history.
After reviewing the matter, I have the following comments:
1. The object of the MCPO filing was to prevent disclosure of an audio recording of a 911 emergency call, not its court filing.  This intent was clear from even a cursory reading of the filed documents.
2. Even if the MCPO had sought to suppress its filing, no order had been entered granting that relief.  According to R.1:38-11, "a court record may be sealed by court order for good cause." (emphasis supplied)  The rule goes on to state that documents in normal civil files "may not be filed under seal absent a prior court order mandating the sealing of such documents."  (emphasis supplied)  Accordingly, even if a party to a lawsuit seeks to have a document sealed, no such sealing shall occur unless and until a court order is signed.
3. Transparency concerns regarding sealed records are exacerbated when, as here, a person who did not have the docket number could not have even determined that the file had been sealed.  During the sealing period, a member of the public who searched for "Middlesex County Prosecutor" in the ACMS would have not discovered the existence of this file.  It is one thing for the court's computer to state that the contents of a file are sealed.  It is quite another for the computer system to not even acknowledge that the sealed file exists.
I understand that sealing this particular file was a result of a clerical error.  Yet, it underscores a need for procedural safeguards to prevent the improper sealing of future cases.  Among these safeguards could be: a) no file is sealed from view in the ACMS absent a court order, and b) a list of all sealed files should be publicly available so that members of the public may know which sealed files exist so that they can challenge the sealing order pursuant to R.1:38-12.

Please review the issues presented and let me know your thoughts.  Thank you for your attention to this matter.
Very truly yours,

Thursday, April 30, 2015

OPRA case sealed by court.

On April 15, 2015, I visited the Superior Court's Civil Division at the Middlesex County Courthouse in New Brunswick.  As is my practice, I reviewed a listing of recently filed cases and came across an Open Public Records Act (OPRA) lawsuit bearing Docket No. MID-L-1217-15.  My written notes indicate that the Middlesex County Prosecutor's Office was the plaintiff in the suit, which is unusual because government agencies typically are OPRA defendants, not plaintiffs.  Intrigued, I asked for a copy of the case file but was told that it was not immediately available because it was in Assignment Judge Travis Francis' office.

When I checked the court's on-line case searching system, a page appeared (click here) advising that the case is "sealed."  I have never seen an OPRA case file sealed. (For those who didn't know that you could search Superior Court cases on-line, an explanation is provided here.)

I have submitted an OPRA request to the Middlesex County Prosecutor's Office for all contents of the sealed case's file.  I will post the results when available.

Wednesday, April 29, 2015

Since 2012, Millburn school board paid up to $800K to settle federal IDEA claims.

The Millburn Board of Education (Essex County) has released, in response to my Open Public Records Act (OPRA) request, redacted versions of several settlements of administrative cases brought by students and their parents under the federal Individuals with Disabilities Education Act (IDEA).  I am not sure that the list is complete.  Most of these settlement agreements, which are on-line here, contain confidentiality agreements that prevents parents from disclosing the settlement amounts.

Docket: EDS-18665-2013N
Date: May 8, 2014
Amount: $5,000

Docket: EDS-12594-2014N
Date: December 4, 2014
Amount: $139,000

Docket: None
Date: Undated
Amount: "Tuition cost" of an undisclosed amount.

Docket: EDS-17524-2013N
Date: April 16, 2014
Amount: $200,000, less parents' insurer's contribution

Docket: EDS-10065-2013N
Date: August 16, 2014
Amount: $102,500

Docket: EDS-11884-2014N
Date: December 15, 2014
Amount: none

Docket: EDS-09885/6-2014N
Date: September 16, 2014
Amount: none

Docket: 2014-20160 (OAL)
Date: October 28, 2013
Amount: $90,000, less parents' insurer's contribution

Docket: 2012-17930 (OAL)
Date: July 16, 2013
Amount: $359,499.99

Tuesday, April 7, 2015

Stafford claims OPRA suit is "frivolous" and brought in "bad faith" to "harass the Township."

In an earlier post, I wrote about my lawsuit against Stafford Township (Ocean County) seeking records pertaining to alleged "unlawful acts" by a Stafford officer which were allegedly not acted upon by the police chief.  Township Attorney Christopher J. Dasti issued a blanket denial of my request without identifying any of the records to which access was being denied.  I had informed Dasti that Judge Grasso had previously ruled that certain records in an internal affairs file, such as those created before the commencement of an internal affairs investigation, are not exempt.  Still, Dasti wouldn't offer more than a vague, blanket denial.

After my lawsuit was served upon Stafford, Dasti sent my lawyer, CJ Griffin, a letter demanding that I withdraw my suit.  In his letter, Dasti claimed that the lawsuit "is nothing more than an attempt by [Paff] to harass the Township by forcing it to incur unnecessary legal fees and costs."  He continued that "[a]s a result of [Paff's] bad faith" the Township will seek a court order requiring me and Griffin to pay the Township's attorneys fees and costs.

In her response, Griffin advised Dasti that I will not be withdrawing my lawsuit and he could hasten the resolution of this suit by providing a candid, informative response to my records request. She told Dasti that his "continued refusal to acknowledge whether responsive records even exist, along with a blanket assertion that if any such records exist they would be confidential, simply will not suffice."  Both Dasti's letter and Griffin's response are on-line here.

Thursday, March 26, 2015

Ocean Prosecutor ordered to pay $21,799.56 in attorneys fees and costs in police dash cam OPRA case.

In a March 24, 2015 written opinion, on-line here, Ocean County Superior Court Assignment Judge Vincent J. Grasso ordered the Ocean County Prosecutor's Office to pay an Open Public Records Act (OPRA) requestor's attorney $21,799.56 in fees and costs.

Attorney Walter M. Luers of Clinton, the recipient of the fee award, represented requestor Shabsi Ganzweig in his lawsuit against Lakewood Township and the Prosecutor's office.  Judge Grasso ruled that Luers was entitled to $18,018 in attorney fees (57.2 hours at $315 per hour), plus costs of $398.46 and a "contingency enhancement" of $3,383.10.

Ganzweig had sought police reports and dash-camera recordings regarding two August 31, 2013 traffic stops.  A copy of Judge Grasso's October 2, 2014 decision in that case is on-line here.

Wednesday, March 25, 2015

New OPRA suit: Stafford challenged for not describing denied documents.

A common problem that records requestors face is being denied access to documents that the records custodian refuses to identify or describe. A lawsuit that I filed today against Stafford Township (Ocean County) seeks to enforce the rule that requestors have a right to a reasonably detailed description of each record that is being suppressed rather than just being told, in effect, that "we've determined that the responsive records, if any, are exempt from disclosure."

By way of background, two Stafford police officers sued the Township alleging that a sergeant's promotion exam was administered unfairly. As part of their claim, they asserted that another Stafford officer had "admitted to committing unlawful acts" and that Police Chief Joseph Giberson III "withheld this information."

I submitted several Open Public Records Act (OPRA) requests to Stafford seeking information regarding the officer's alleged "unlawful acts."  After learning that no charges were filed in court against the officer, I posited that the public had a paramount interest in learning what, if any, "unlawful acts" the officer committed so we (i.e. the public) could determine whether the decision to not file court charges against the officer was reasonable or the result of preferential treatment.  When I asked Stafford for "any writings that describe or otherwise reference any 'unlawful acts' committed by" the officer, I was informed by Township Attorney Christopher J. Dasti that Stafford Police had created an internal affairs file for this officer in 2013, that "any documents . . . would be contained in [the] internal affairs file" and that all "such documents are confidential and exempt from disclosure."

In my response, I explained to Dasti that just because a document is in an internal affairs file does not necessarily mean that it is exempt from disclosure--for example, documents that were created prior to the internal affairs investigation are not confidential.  I asked Dasti "to identify each record that exists and then give me a detailed explanation as to why the Township can’t provide me with even a redacted version of it."  Without such a description, I explained, I was unable to determine whether or not my records request was being properly denied.  In his reply, Dasti bluntly said, "As I have previously indicated . . . the internal affairs records are exempt from disclosure under OPRA. Therefore, the Township cannot respond to your request.”

It is possible, of course, that Dasti might be correct that each and every record in the officer's internal affairs file is exempt from disclosure.  But, unless records requestors are given a general description of each withheld record, they will be unable to challenge a custodian's blanket assertion that that the requested records are exempt from disclosure.  If the manner in which Dasti denied my request carries the day, then every OPRA request can be defeated by a generic, non-specific claim of privilege.  And, under a common law right of access balancing test, how could a requestor ever argue that his or her right to disclosure exceeds the government's need for confidentiality if the requestor doesn't know the nature of the record at issue?

My lawsuit and brief, filed by CJ Griffin of Pashman Stein in Hackensack, is on-line here.  The matter will be heard by Judge Vincent J. Grasso at 1:45 p.m., May 12, 2015 in Toms River.