Monday, October 16, 2017

Appellate Division exempts all "student records," even those from which all student personal identifying information is redacted, from OPRA.

In an October 16, 2017 published (and thus precedential) decision, a three-judge panel of the New Jersey Superior Court, Appellate Division ruled that unless a record requestor is an "authorized person or organization" defined by New Jersey regulations, no record "related to an individual student" may be disclosed by school officials absent parental consent or a court order.  According to the opinion:
For example, a document reflecting a school district's settlement of claims for special services by a hypothetical disabled student, Mary Jones, remains a "student record," even if her name and other personal identifiers are removed from the settlement agreement. The record still "relates" to Mary Jones and discusses aspects of her life. The document does not cease becoming a "student record," or change its fundamental character, even if, say, a redacting employee took an extra-wide marker to mask the child's name, address, Social Security number, and other demographic information, or replaced the actual names within it with fictitious names.
If such a court order is sought, the Appellate panel requires that parents must be given an opportunity to comment on proposed redactions to any records relating to their children.

This sweeping decision appears to justify the complete suppression, at least initially, of all settlement agreements that resolve lawsuits filed by or against students.  Thus, when a settlement is reached in the lawsuit filed by "Jane Doe," a fourth grade girl who claimed she was "raped 'hundreds of times'" by a now retired Hillsborough (Somerset County) elementary school principal, Hillsborough taxpayers will not be entitled to disclosure of even a heavily redacted version of the settlement agreement without first obtaining a court order. 

It is not clear at this point whether taxpayers who sue to obtain such a court order will be entitled to recover their attorney fees from the school district if they are successful.  Under the Open Public Records Act (OPRA), successful litigants are entitled to recover their attorney fees and court costs from the agency that wrongfully withheld the records.  The Appellate panel likened a lawsuit filed in accordance with its opinion to a common-law public records access case where the availability of attorney fees and court costs is at best unclear.

While I appreciate the need to keep some student records confidential, I believe that some categories of student records, including those that disclose settlements paid by taxpayer dollars, must remain readily available to the public.

In its opinion, the panel recognized the likelihood of an appeal to the New Jersey Supreme Court and "encourage[d] the New Jersey Department of Education to consider formulating 'best practices' guidance – perhaps expanding or revising the existing regulations – to address the myriad issues of implementation that have been presented by [this opinion]."  Hopefully, either the Supreme Court or the Department will ensure that this need is accommodated. 

Friday, October 6, 2017

Is a quorum of a municipal governing body present when a majority of the body's members are recused, conflicted or choose not to vote?

Amazingly, this rather straightforward question is unsettled and bills seeking to clarify it have languished in the Legislature since 2011.

On October 3, 2017, Anthony Bellano of the Cinnaminson Patch published an article about how the five-member Cinnaminson Township Committee, during a public meeting, passed a motion, with only two expressed, affirmative votes, to refer one of the governing body's members to the Burlington County Prosecutor and the New Jersey Department of Community Affairs for official misconduct investigations.

Voting in favor of the motion were Mayor Anthony Minniti and Deputy Mayor William “Ben” Young.  Committeeman Donald Brauckmann, who was the subject of the investigation referral, did not vote or participate because of a clear conflict of interest.  According to the article, Committeeman Howard “Bud” Evans "recused himself due to his friendship with Brauckmann" and Committeeman John McCarthy "abstained because he said he didn’t have enough time to thoroughly read the results of the investigation and make an informed vote."

Some members of the public who observed the meeting expressed confusion as to how only two affirmative votes--cast by less than a majority of the members present--could carry the motion.  According to the Patch article, Township Solicitor John Gillespie "refused to answer" residents' questions regarding whether two votes were enough to carry the motion.

After searching on-line and speaking with Laura C. Tharney, Executive Director of New Jersey Law Revision Commission, I learned that the Commission had published a "Final Report relating to Effect of Abstentions" in April 2011.  This report concluded that under current, sometimes conflicting state court decisions, the vote of a person who abstains from voting is counted as "yes" vote under the common law unless he or she has "expressed opposition, in which case" he or she is counted as voting "no."  But, the report notes that the Commission had "found no case describing what kind of expression of opposition would suffice to make the abstention a 'no' vote."

The report also found that if a member is not entitled to vote, he is not counted as present to constitute a quorum and that "if a member recuses himself and takes no part in the proceedings even if he is physically present and would not necessarily be barred from voting, his presence does not count toward a quorum."  The report noted that "it may be particularly hard to determine whether a member fully recused himself or whether he merely abstained. In the first case, his vote would not count; in the second, he would be counted as affirmative."

Under this murky guidance, Brauckmann would not have been counted toward the quorum because he was  clearly conflicted.  Whether Evans should have been counted toward the quorum depended on whether his decision to recuse himself, due to his friendship with Brauckmann, was a well reasoned decision.  If he properly recused himself, he also would not have been counted as present for the purposes of a quorum.  But, had he instead of recusing himself announced that "I am a good friend of Donald Brauckmann and really oppose this attempt by Minniti and Young to refer him to the prosecutor, but because of my friendship I am abstaining from this vote," then it appears that he would have been counted toward the quorum and his vote would have been counted as a "no." 

According to the Patch article, McCarthy used the word "abstained" instead of "recused" so, if he truly abstained, he would have counted toward the quorum but whether his vote counted as a "yes" or "no" would turn on whether he expressed a sufficient level of opposition to the substance of the motion.

In sum, Minniti's and Young's "yes" votes would seem to have carried the motion only if: a) either Evans, McCarthy or both of them abstained (rather than recused themselves) and b) if one or none of the abstainers expressed no opposition to the substance of the motion.  In such a case, the quorum of three members would have been satisfied and the number of "yes" votes would have exceeded the number of "no" votes.  If, however, Evans and McCarthy both "recused" instead of "abstained," then the vote would have been out of order for want of a quorum.  And, if Evans and McCarthy both abstained and announced their opposition to the motion, the motion would have lost by a 2-2 vote.

At the end of its report, the Commission recommended legislation that would clarify matters.  In the current Legislative Session that expires in January 2018, Assembly Bill No. 2896, introduced by Assemblyman Ronald S. Dancer, would establish the following rule:
[W]hen a member of a public body is attending a meeting, but abstains or fails to vote on a matter before the public body, the following provisions shall apply: the member shall not be counted as voting either for or against the matter; if the member is legally entitled to vote and has not recused him or herself from consideration of the matter, the member shall be deemed present for the purpose of determining whether there is a quorum of the public body to consider the matter; and if the member is not legally entitled to vote because of conflict of interest or otherwise, or has recused him or herself from consideration of the matter, the member shall not be counted as present for the purpose of determining whether there is a quorum of the public body to consider the matter.
If Dancer's bill would have been law when Cinnaminson's motion was voted upon, the passage of the motion would have still turned on Evans' and McCarthy's recused-vs-abstained status.  But, at least the importance of the recused-vs-abstained distinction would have been better realized and their ultimate decisions to abstain or recuse would have been reached in a more methodical and less arbitrary manner.

Dancer's present effort has been before the Legislature since December 2011.  Dancer introduced an identical bill (A2437) in the 2014-2015 Legislative Session and, along with Senators Nicholas P. Scutari and Ronald Rice, introduced the same bills in the 2012-2013 session (A4436 and S767). Scutari introduced an identical bill (S3121) in the 2010-2011 session.  The only time any version of the bill was heard was on March 4, 2013 when S767 was favorably reported out of the Senate's Community and Urban Affairs Committee by a unanimous 5-0 vote.

Monday, August 28, 2017

Three-judge panel split 2-1 on whether police dash-cam video is available under OPRA.

On August 28, 2017, two judges out a three-judge Appellate Division panel issued a non-precedential opinion granting a Lakewood resident access to a police dash-cam video of an August 31, 2013 traffic stop that resulted in the arrest and indictment of a Lakewood police officer.  One judge, however, filed a dissenting opinion that argued that the recording was a "criminal investigatory record" and thus exempt from disclosure.

The case is similar to Paff v. Ocean County Prosecutor's Office.  There, as in today's case, the decision turned on whether a local police directive requiring the video to be recorded satisfied the "not required by law" prong of the criminal investigatory record exemption.  Under OPRA, a record cannot be exempt as a criminal investigatory record if it is required by law to be made.  Judges Ellen Koblitz and Thomas W. Sumners ruled that a Lakewood police directive that required dash-cam filming off all traffic stops was a "law" that removed the videos from the criminal investigatory record exemption.  Judge Susan L. Reisner disagreed and wrote a dissenting opinion.

The issue of whether a local police directive satisfies the "law" requirement is under consideration of the New Jersey Supreme Court which is presently reviewing the Paff matter.

Beside the dash-cam issue, all three judges agreed that the sufficiency of the information contained in the prosecutor's press release regarding the Lakewood officer's arrest should be remanded to the trial court.  All three judges also agreed that the trial court should examine whether police reports of the incident should have been released, whether the video is disclosable under the common law right of access and whether attorney fees issued to the plaintiff in the case should be recalculated.

Walter M. Luers of Clinton is the plaintiff's attorney.

Sunday, August 27, 2017

What is a "payroll record" under OPRA and what type of information does it disclose?

While "personnel records" of public employees are mostly exempt under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-10 makes certain types of personnel information expressly available to the public.  Specifically, a public employee'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" and must be disclosed to the public.

As one can see, one of the items within the public domain is an employee's "payroll record."  But, what exactly is a payroll record and what information must it contain?

This question was answered by the Government Records Council (GRC), the State agency charged with enforcing OPRA, in the case of Gregory Havlusch, Jr. v. Borough of Allenhurst (Monmouth), Government Records Council Complaint No. 2011-243.  In that case, the GRC's Executive Director opined (see pp 3 to 5 of the December 18, 2012 Findings and Recommendations of the Executive Director) that "an employee's payroll records should include information that will allow a person to determine whether an employee took a leave of absence, the dates of the leave, whether it was paid, and if so, the amount of salary received for the paid leave of absence."

Based on this ruling, I made a request to the City of Bridgeton (Cumberland County) for the "payroll record" of Jeffrey Bordley who serves as a police officer and, incidentally, also serves as an elected member of the Vineland Board of Education.  (For those who wish to make a similar request, I've placed a text file of an OPRA request on-line here.)

Bridgeton sent me two files in response to my request, an "Attendance Transaction Report by Employee ID"  and a "Detail Time Worked by Employee ID."

I invite readers to examine these reports carefully.  While they are difficult to fully understand, they appear to show that Bordley was using sick, vacation and administrative time as well as worker's compensation, family medical leave and "Police Paid Administrative Leave" for substantial periods of time between May 2015 and May 2017.  It should be noted that Bordley was injured in a serious head-on collision on Saturday, February 4, 2017, which probably accounts for much of the time he wasn't working regular shifts in 2017.  It is unknown, however, why he was not working many of his normal shifts prior to February 4, 2017.

Citizen's who suspect that a public employee may be on extended leave may want to request his or her "payroll record" in order to confirm or dispel that belief and to determine whether the leave is paid or unpaid.

Friday, August 25, 2017

Bergen judge: Edgewater Borough's response to records request was "too elusive."

In an August 18, 2017 opinion, Bergen County Assignment Judge Bonnie J. Mizdol took Edgewater Borough officials to task for being "too elusive" about the search they undertook to find records sought by an Open Public Records Act (OPRA) requestor.  She ordered the Borough to undertake an additional search, have each person involved in the search provide his or her own detailed certification and to pay the requestor's court costs and attorney fees.

The requestor sought various paper and electronic records pertaining to a development project.  In its first response, Edgewater granted a few responsive records and denied access to the rest "without any reason or justification for the denial."  At a July 23, 2017 hearing, Judge Mizdol ordered Edgewater to submit certification describing its records search method (called a Paff Certification) and an index showing the documents the search turned up (called a Vaughan Index). In response the Borough produced a two-page certification and a two-page index.

Edgewater's election to provide three partial responses to the request caused Judge Mizdol to remark that the Borough's "piecemeal production of documents is telling and indicative of a less than adequate search."  Regarding the Borough's two-page Paff certification, Mizdol found thatit was "simply too elusive to ascertain that a proper search was performed . . . [and] the Court does not know what defendants did or did not do to search for the requested records to satisfy their obligations."  Judge Mizdol ordered Borough officials to
undertake an additional search for records . . . and provide an exhaustive Paff Certification attesting to the comprehensiveness of the search. If the task of searching has been delegated, then each and every party tasked with such delegation shall also provide a Paff Certification. The Custodian shall, likewise, provide to the plaintiff any additional documents discovered during the search, or, as appropriate, a Vaughn Index (privilege log) outlining with specificity the privilege claimed.
The court's opinion noted that the requestor, 65 River Road Partners, LLC, "is involved in several pieces of contentious litigation with the Borough of Edgewater regarding approximately 18.73 acres of vacant land along the Hudson River which [it] seeks to develop as multi--family housing units with a set aside for low and moderate income households in compliance with the Fair Housing Act, Council on Affordable Housing (COAH)."

Sunday, August 13, 2017

Hunterdon Prosecutor asked to allow OPRA requests to be submitted electronically.

Update 08/24/17: The Hunterdon County Prosecutor's Office updated its OPRA web page to advise records requestors that OPRA requests "can be mailed, sent electronically (FAX: 908-806-4618 or EMAIL:, or presented in person to the Hunterdon County Prosecutor's Office."  As can be seen by an archived page, the previous version of the page advised requestors only that requests "can be mailed or presented in person to the Hunterdon County Prosecutor's Office." Similarly the previous OPRA request form and the present form differ in that the new form informs requestors that they may submit their request electronically.
The following letter was sent by Libertarians for Transparent Government, a non-profit I serve as executive director, to the Hunterdon County Prosecutor's office.  At issue is that office's insistence that OPRA requestors submit their requests only by hand-delivery or regular mail.
Deborah D. Factor, First Assistant 
Hunterdon County Prosecutor's Office
65 Park Avenue
Flemington, NJ 08822-0756
Via fax to 908-806-4618 and e-mail to

RE: Open Public Records Act

Dear First Assistant Factor:

Your office's on-line instructions to the public on how to submit an Open Public Records Act (OPRA) request do not provide a way for those requests to be e-mailed or faxed to your office.  Rather, the page states that "[o]nce fully completed, the request form can be mailed or presented in person to the Hunterdon County Prosecutor's Office."   Your OPRA form itself states that "[t]he completed request form may only be either mailed or hand-delivered."

Your office's requirement that citizens use only hand-delivery or U.S. mail to submit OPRA requests is not only out-of-step with the way people communicate in the 21st Century, but also runs afoul of the Government Records Council's (GRC) September 29, 2015 decision in Dello Russo v. East Orange, GRC Complaint No. 2014-430.  In that case, 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.

Would you please amend your OPRA form and instructions so that they conform to the GRC's holding?

Very truly yours,

Tuesday, August 8, 2017

Wall Township school board sued over refusal to disclose yearbook invoice.

Update 08/23/17: After this suit was filed, the Wall school board released the requested invoices.  They are on-line here.

On August 3, 2017, Libertarians for Transparent Government (LFTG) filed a lawsuit against the Wall Township Board of Education challenging its refusal to disclose an invoice from Jostens, the high school's yearbook vendor.

On June 19, 2017, LFTG requested a copy of Jostens' invoice regarding its production of the 2017 high school yearbook.  The request was made because one of the student's photographs in the 2017 yearbook was altered so as to remove references to Donald Trump.  As a result, some of the yearbooks have been reprinted at a cost of $10,000. The school board has claimed that no public funds were used for the reprint.  In response to LFTG's records request, the school board confirmed that an invoice existed but denied access claiming that the invoice was protected by the deliberative process privilege.  In his June 19, 2017 denial, Board Secretary Brian J. Smyth stated that "the invoice has not been reviewed and approved for payment [thus it] is exempt while the district deliberates as part of the review."

The lawsuit is captioned Libertarians for Transparent Government (LFTG) v. Wall Township Board of Education and Brian J. Smyth, Docket No. MON-L-2848-17 and LFTG is being represented by Walter M. Luers of Clinton.