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.

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.

Sunday, October 30, 2016

New OPRA lawsuit seeks real reason why school business administrator was let go.

According to a May 13, 2016 newspaper article, former Shore Regional High School District (Monmouth County) business administrator Dennis Kotch "resigned under the cloud of an investigation."  While the school district would not tell the newspaper exactly why Kotch resigned, it did attribute to anonymous sources that Kotch was "the subject of an investigation into the misuse of school funds."

In order to learn more about the matter, Libertarians for Transparent Government, a NJ nonprofit corporation (LFTG) filed a September 27, 2016 Open Public Records Act (OPRA) request seeking, among other items, Kotch's "date of separation and reason therefore" and any e-mails or other correspondence between school officials and law enforcement sent or received during 2016.  In an October 6, 2016 letter, Kotch's replacement, Corey Lowell, denied LFTG's first request because it asked for "information" (i.e. Kotch's separation date and reason) as opposed to identifiable records.  As to LFTG's request for the law enforcement correspondence, Lowell said that the request was "overly broad [and] invalid under OPRA."

On October 25, 2016, LFTG, through attorney CJ Griffin of Hackensack, filed a civil lawsuit seeking to compel Shore Regional to properly respond to the OPRA request and to pay LFTG's costs of courts and attorney fees.  In Libertarians for Transparent Government v. Shore Regional High School District and Corey Lowell (docket number not yet issued), Griffin argued that while OPRA generally requires requestors to ask for records as opposed to information, N.J.S.A. 47:1A-10 is different.  That section of the statute states:
an individual's 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 shall be a government record.
Griffin argued that this section requires OPRA custodians to disclose information about public employees (e.g. an employee's "length of service," which changes daily) regardless of whether or not that information is embodied within a specific record.  She argued that citizens, in many if not most cases, aren't familiar enough with how public bodies keep their personnel records to allow them to ask for the right record and that in many cases the information may not be recorded in writing at all.

Beyond that, Griffin argued that it is not enough for Shore Regional to just say that the reason for Kotch's separation was that he "resigned."  She cited a 1991 New Jersey Supreme Court case holding that citizens are entitled to know the real reason public employment was terminated.  That case, South Jersey Pub. Co., v. N.J. Expressway Authority, stated
[T]he court will recognize that the public interest in disclosure is intended to enable the public to make a sound judgment about the reasonableness of the Authority's decision regarding [the employee], which authorized the expenditure of public funds to continue his salary and benefits for a substantial period of time after his resignation had become effective. Without disclosure of the reasons for [the employee]'s "voluntary separation" from the Authority, the public cannot intelligently make such an evaluation.
Regarding Lowell's claim that LFTG's request for the district's correspondence with law enforcement was overly broad and thus invalid, Griffin pointed out that LFTG's request is very similar to a request that the Appellate Division in 2012 found clear enough to warrant a response.

No hearing date has yet been established by the Court and Shore Regional has not yet been formally served with the lawsuit.

Opinion: GRC should be able to award OPRA attorney fees without help from an administrative law judge.

One of the main complaints about the Government Records Council (GRC) is the length of time it takes to fully adjudicate an Open Public Records Act (OPRA) case.  For example, on October 25, 2016, the GRC adjudicated Michael L. Shelton v. Manasquan School District, GRC Complaint No. 2014-183 which was filed on April 25, 2014.  Unfortunately, case processing times that are counted in years instead of months are not uncommon. 

Making a party wait two and a half years for his or her OPRA case to conclude is not in keeping with OPRA's goal of making government records "readily accessible" and providing requestors with "a summary or expedited" adjudication process when access to records is denied. See, N.J.S.A. 47:1A-1 and 47:1A-6.

One of the many reasons for the GRC's slowness is its heavy reliance on administrative law judges to resolve factual disputes.  While it makes sense to have administrative judges preside over contested OPRA matters where a case's underlying facts are in serious dispute and extensive discovery and witness testimony is required, the GRC should refrain from farming out routine matters that the GRC's staff members are capable of deciding themselves.

For example, on October 25, 2016, the GRC nearly wrapped up Shawn G. Hopkins v. Monmouth County Board of Taxation, et al--a case which was originally filed with the GRC in January 2014.  Hopkins won his case and the only issue left to be decided was the amount of attorney fees the government agencies that denied Hopkins' requests had to pay. 

Hopkins' attorneys had filed certifications with the GRC stating the number of hours they worked on the case and their hourly rates.  What was left for the GRC to do was determine whether the hours the attorneys claimed to have worked were fair and whether their hourly rates were reasonable.  Multiplying the rates by the hours would yield the "loadstar" amount of fees which then could be adjusted upward if warranted by the novelty or difficulty of the case. 

In its October 25, 2016 opinion, the GRC decided to punt the determination of Hopkins' attorney fees to an administrative law judge.  In its decision, the GRC said that it "has limited experience in attorney fees" and was satisfied that an administrative law judge "is in the best position to resolve the parties' arguments and reach a reasonable prevailing party fee determination."

Why cannot the GRC determine the proper fee amount itself?  It has done so in other cases (see, e.g. Jeff Carter v. Franklin Fire District #2, Complaint No. 2011-228). 

It will likely take the administrative law judge another six months to a year to resolve the attorney fee issue.  And, upon receipt of the judge's recommendation, it will take an additional month or two for the GRC to affirm that fee amount. 

The parties to this matter and their attorneys have waited long enough for this case to be resolved. The GRC should not have referred this matter to the Office of Administrative Law.  Rather, it ought to have determined a fair attorney fee award itself.