Saturday, October 3, 2015

GRC requires city to accept either faxed or e-mailed OPRA requests.

On September 29, 2015, the Government Records Council (GRC) ruled that the City of East Orange must accept Open Public Records Act (OPRA) requests by either fax or e-mail and cannot restrict requestors' OPRA submissions to regular mail or hand-delivery.

In the case, Dello Russo v. East Orange, the GRC held that East Orange's "policy of banning submission of OPRA requests electronically represents an unreasonable obstacle on access."  It held that while the City did not need to accept OPRA requests by both fax and e-mail, it must accept some form of electronic submission.

This decision clarifies the Appellate Division's May 21, 2009 decision in Paff v. City of East Orange. There, Appellate Division Judge Stephen Skillman affirmed the GRC's ruling that "there is no basis for concluding that East Orange's form, which only prohibits submission of OPRA requests by fax, but allows submission by mail or 'electronically,' imposes any undue burden upon parties who seek the disclosure of government  records under OPRA."

Friday, October 2, 2015

Unpublished trial court OPRA opinion.

"Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals.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 I think that it's important that court opinions, even if they are not precedential, are easily accessible for future use.

Christine Rampolla v. Hatikvah International Academy
Middlesex County, Docket No. MID-L-4441-13
Hon. Travis L. Francis, A.J.S.C.
September 16, 2015
Click here for the court's decision.

Summary:  1. The Advisory, consultative and deliberative (ACD) privilege only applies to the formulation of policy, not its execution or to administrative tasks; and 2. Documents that contain ACD and non-ACD material must be disclosed, with the ACD material redacted.  Ms. Rampolla declared prevailing party entitled to attorney fees and costs.

Thursday, October 1, 2015

Middlesex Judge sharply criticizes, but ultimately follows, an Appellate ruling that sealed most police records.

Earlier this year, the Appellate Division issued a decision that drastically restricted public access to law enforcement records.  The decision, in North Jersey Media Group, Inc. v. Township of Lyndhurst, caused Middlesex County Assignment Judge L. Travis on September 21, 2015 to reluctantly reverse his previous order that granted access to police car dashcam videos that recorded 119 pursuits by New Brunswick police that resulted in eluding charges being filed.  Although he was constrained to follow the Appellate Division's Lyndhurst precedent, Judge Francis sharply criticized the decision in William Brennan v. Middlesex County Prosecutor's Office, Docket No. MID-L-293-15.  Judge Francis wrote:

"This Court muses at the notion that OPRA was created to assist those trying to keep a watchful eye over the police in their general duties but if an interaction is documented on an MVR [i.e. dashcam] or body camera, the same would be considered an exempt criminal investigatory record. This Court wearily searches for the boundaries of the "criminal investigatory record exemption 'to no avail.' * * * For OPRA purposes it is clear that an MVR would arguably be one of the best documents to use to keep a watchful eye over government or to get to the facts of a set of circumstances. Now, the news or any inquisitive citizen must understand what happened in an event through a press release, as access to these MVRs is forever barred from OPRA related public access."

Tuesday, September 29, 2015

Parents sometimes need to enforce special education order and consent judgments.

The Office of Special Education, a unit within the New Jersey Department of Education, has a procedure for parents (and their attorneys) to follow when a local school district does not abide by consent judgments and orders that arise out of Individuals with Disabilities Education Act (IDEA) litigation.  That procedure is set forth on the 39th page of the Parental Rights in Special Education manual (or 43rd page of the PDF).

In order to see how often parents need to avail themselves of this procedure, I made an Open Public Records Act (OPRA) request for "all 'Parental Requests for Enforcement of a Final Decision issued by the Office of Administrative Law' filed with the Office of Special Education so far in 2015."  In response, I received documents from the following nineteen cases.  The Office of Special Education denied access to seven additional cases in their entirety claiming an exemption under the Family Educational Rights and Privacy Act ("FERPA") 20 U.S.C. Sect 1232g.

Tuesday, September 15, 2015

Lumberton agrees to new executive session minutes procedure.

In my August 16, 2015 article, I wrote that attorney Ted Rosenberg filed a Motion to Enforce Litigants' Rights against Lumberton Township (Burlington County) because it had--for the second time--lost the minutes of several of the Township Committee's nonpublic (closed or executive) meetings.

On September 8, 2015, Superior Court Judge Marc M. Baldwin signed off on a Consent Order that the Township and I agreed to.  This Consent Order, which is permanent, prescribes a procedure that should ensure that closed minutes are never lost again. It also requires executive session minutes to be approved promptly, reviewed annually and posted on the Township's website.

Lumberton also agreed to pay Rosenberg $1,610 for legal services connected with filing the enforcement motion.

Sunday, September 13, 2015

Lawsuit seeks identity of State Trooper who sought sex from target of arrest warrant.

At 10 a.m. on Wednesday, October 14, 2015, Mercer County Assignment Judge Mary C. Jacobson will hear argument in Paff v. Department of Law and Public Safety, et al., Docket No. MER-L-1685-15.  This Open Public Records Act (OPRA) and common law right of access case was filed on my behalf by Walter M. Luers of Clinton.

The lawsuit challenges the New Jersey State Police decision to suppress the identity of a State Trooper who resigned or was fired for offering to not execute an arrest warrant in exchange for the warrant's target having sex with him.  The case also seeks the Trooper's resignation letter and a plea agreement that resolved internal charges against the Trooper.  No criminal charges were filed against the Trooper.

The matter will be heard on the 4th floor of the Mercer County Courthouse, 400 S. Warren St, Trenton.  Members of media and public are encouraged to attend and observe but are advised to call the court at 609-571-4499 the day prior to confirm that the hearing date and hour have not changed.

Thursday, September 10, 2015

NJ Assembly bill seeks to require GRC's initial mediation and adjudication of records disputes.

On June 22, 2015, the Assembly Appropriations Committee favorably reported Assembly No. 4435, introduced on May 11, 2015 by Assemblymen John J. Burzichelli (D-West Deptford) and John DiMaio (R-Bridgewater).  If passed, Open Public Records Act (OPRA) requestors who are denied access to a record would no longer be able to take their disputes directly to Superior Court.  Rather, requestors would have to file their complaints with the Government Records Council (GRC) and go through the GRC's mediation process.  If the mediation does not resolve a complaint, the GRC would adjudicate the dispute and "issue an advisory opinion in the matter as to whether the particular type of record is a government record which is accessible to the public."

After completing these steps, an aggrieved requestor would be allowed to file a Superior Court action five days after serving a notice of intent upon the government agency which denied the request.

The bill also seeks a change that will require a public agency to pay a requestor's attorney fees "in the event the Government Records Council opinion determined that the government record had been improperly denied."  According to a strict reading of the proposal, a requestor who wins in Superior Court after losing before the GRC would not be able to get his or her attorney fees paid by the government agency which denied the request.