Thursday, February 23, 2017

Judge differs with Warren County regarding disclosure of a civil complaint alleging sexual assault of minor.

On January 20, 2017, Warren County records custodian Art Charlton responded to an Open Public Records Act (OPRA) request for, among other records, a copy of the civil complaint filed C.C. v. County of Warren, Docket No. WRN-L-17-15.  In this case, which is still pending, a teenage boy alleged that a Warren County official sexually molested him on four occasions in 1988 and 1989 during transports between the Warren County Juvenile Detention Facility and other locations.  C.C. was between 14 and 16 at the time.

In his letter, Charlton explained that he redacted from the requested records the "identity of the accused" official.  Typical is the redaction applied to paragraph 17 of the complaint: "Each of the four (4) instances of abuse occurred when John Doe 1, the then Warren County [redacted], volunteered and was authorized by County officials to personally transport C.C. to or from County facilities."  It was Charlton's position that the public wasn't permitted to know the position that the accused pedophile held with the County.  The twenty-three page, redacted complaint is on-line here.

Charlton's primary justification for the redactions was the Child Sexual Abuse Act, N.J.S.A. 2A:61B-1(f) which states that "The name, address, and identity of a victim or a defendant shall not appear on the complaint or any other public record as defined in [the OPRA]. In their place initials or a fictitious name shall appear."  Thus, Charlton asserted, the position held by the alleged pedophile needed to be suppressed to prevent the public from identifying him.

Given extensive media coverage of pedophilia accusations regarding a particular Warren County official, it was not hard for me to guess the identity of the defendant and which office he held.  Yet, I wanted to be able to name the defendant in my writings about this complaint without having to worry that I might be defaming someone.

Accordingly, on February 20, 2017, Libertarians for Transparent Government, a non-profit for which I serve as executive director, filed a New Jersey Judiciary Request Form with the Warren County Civil Division Manager's office.  The request sought to determine whether the state court system would agree or disagree with Charlton's position that the accused pedophile's County position was permissibly redacted from the complaint.  In order to simplify the matter, the request sought only the 4th, 5th and 6th pages of the civil complaint.  Those pages were heavily redacted and would, if disclosed in unredacted form, disclose the position held by the defendant.

In her February 22, 2017 letter in response to my request, Assignment Judge Yolanda Ciccone disagreed with Charlton's assessment.  She wrote that while Court Rule 1:38 (the rule that governs disclosure of court records) "does exempt from disclosure of numerous documents relating to victims of abuse, it does not equally protect the identities of alleged perpetrators."  She further explained that "the purpose of R.1:38 is to encourage transparency between government and its citizens." 

Accompanying Judge Ciccone's letter were unredacted versions of the 4th, 5th and 6th pages of the civil complaint.  They clearly show that Defendant John Doe 1 was "the then Warren County Sheriff."  Public records and media accounts confirm that the Sheriff of Warren County in 1988 and 1989 was Edward Bullock, who according to a November 18, 2015 news article, passed away on November 16, 2015.

Bridgeton appears to misuse closed sessions to keep its Council squabbles behind closed doors.

The minutes of the Bridgeton (Cumberland County) City Council's eight most recent nonpublic meetings are on-line here.  These minutes are for the meetings, known as executive or closed sessions, where the City Council went behind closed doors to discuss one or more of the nine topics that the Open Public Meetings Act (OPMA) allows to be discussed without the public being present.  One of those nine exceptions, known as the "personnel exception," allows the City Council to privately discuss the hiring, firing, performance, compensation, and discipline of public employees.  According to a 1991 New Jersey Supreme Court decision, closed-door meetings are necessary to ensure the Council's "free and uninhibited discussion" regarding personnel matters.

The minutes of the Council's September 6, 2016 closed meeting, however, show that only one "personnel" matter was discussed.  The minutes recite: "Councilman Spence inquired about the meaning of a remark made by Councilman Surrency at last Work Session.  Councilman Surrency responded that there was no meaning."  This discussion, which on its face does not involve the hiring, firing or discipline of specific a public employee, does not appear to qualify for a closed-door meeting under the OPMA's personnel exception.  Rather, it appears to be a skirmish between two Council members regarding a remark made during a previous public meeting. 

Similarly, the August 16, 2016 closed minutes disclose that Councilman Zapolski distributed documents "that refuted claims made by Councilman Surrency" during a previous meeting.  Again, this appears to be more of a scuffle between two Council members than a confidential discussion regarding a specific public employee.

The chief goal of the OPMA is to ensure that citizens get to witness all phases of governmental decision-making except when an overriding need for confidentiality authorizes a closed-door meeting.  The exceptions to open public meetings are specific and limited and the courts have ruled that those exceptions must be strictly construed against closure of meetings to the public.  While it is understandable that the City Council may want to avoid putting its internal strife on public display, its decision to close the August 16 and September 6 meetings to the public does not appear to be justified under the law.

Also suspect--but for a different reason--is the Council's December 20, 2016 closed meeting for which the substantive part of the minutes states, in its entirety:  "There was a discussion regarding municipal court matters."  This discussion, which was alleged to be a "contract" matter, may or may not have qualified for private discussion.  It is impossible to tell because the minutes themselves are not "reasonably comprehensible" as required by the OPMA's N.J.S.A. 10:4-14.

Tuesday, February 14, 2017

Sponsor promises to amend attorney fee-shifting language in pending OPRA bill.

On February 13, 2017, the Assembly State and Local Government Committee favorably recommended Assembly Bill No. 4532 which would, in its current form, weaken the Open Public Records Act (OPRA) by relieving government agencies from paying a successful OPRA plaintiff's attorney fees if "the court or [Government Records Council] finds that the decision to deny access was reasonable and made in good faith after due diligence."

OPRA's mandatory fee-shifting provision is one of the law's most important features.  According to a 2005 Appellate Division case, without fee-shifting, "the ordinary citizen would be waging a quixotic battle against a public entity vested with almost inexhaustible resources. By making the custodian of the government record responsible for the payment of counsel fees to a prevailing requestor, the Legislature intended to even the fight." 

But, during yesterday's hearing, Committee Chairman Troy Singleton remarked that he was assured by Assemblyman Wayne P. DeAngelo, one of the A-4532's three current sponsors, that the bill's proposed limitation on attorney fee-shifting was intended to apply only to lawsuits where the "personal government records"--a new category of exempted records created by the bill--were at issue.  The bill defines this new category as "consist[ing] of or pertain[ing] solely to a pet or home alarm system permit, license, or registration." 

Earlier this afternoon, I spoke with Elizabeth A. Meyers, DeAngelo's chief of staff, who confirmed that it was never DeAngelo's intention to so dramatically alter OPRA's fee-shifting structure.  Meyers said that DeAngelo has instructed the Office of Legislative Services to amend the bill to make it clear that the bill's limitation on fee-shifting applied onto to court cases where "personal government records" (i.e. pet and home alarm licenses) were being sought.  She said that the curative language, which should be available on-line within a few days, would be offered as an amendment when the bill reaches the Assembly floor.

Monday, February 13, 2017

Middlesex court continues to "disappear" civil cases down the memory hole.

Update 02/17/2017:   I received the following response from the court:

 February 16, 2017

Dear Mr. Paff,

Thank you for bringing this case to our attention.  I have reviewed the case file and contents and determined that the case was impounded improperly which has been rectified.  I understand your concern and assure you that we are working diligently to prevent future errors of this nature.  Contact me if you have any questions.

Ian Ratzlaff
Civil Division Manager
ian.ratzlaff@njcourts.gov
Phone:  (732) 519-3677
Fax:  (732) 519-3708

----- original article ----

In Nineteen Eighty-Four, George Orwell described a slot he called a "memory hole" where public records could be disposed of so completely that the events recited in those records could be claimed to have never occurred.  The manner in which the Middlesex County Superior Court's Civil Division "seals" court files is reminiscent of Orwell's dystopia.

No one disputes that certain records within a court's file (those that identify a sexually abused child, for example) should be excluded from the public record. But the fact that such a record may be contained within a court file does not justify suppression of the entire file and certainly doesn't allow the court to wipe the file's very existence from the public docket.  This is especially true when the defendant in the case is a taxpayer-funded, public agency. 

But, for the second time in as many years, I have found that the Middlesex court has suppressed a pending court case involving a government agency so thoroughly that no indication of the case's existence can be found on the public docket.

Following is my e-mail the the Middlesex Court's Ombudsman.  I will post on this blog any responses that I receive.
February 13, 2017

Luis M. Hernandez, Ombudsman
Middlesex County Superior Court
Via e-mail only to MiddlesexHelp.mailbox@njcourts.gov

RE: Improper "sealing" of court dockets

Dear Mr. Hernandez:

On May 3, 2015, I wrote an article entitled "Sealing of OPRA case turns out to be in error."  The article concerned a clerical error in the Civil Division Manager's office to "seal" an Open Public Records Act (OPRA) case thus making the case "invisible" to anyone searching for it on the Automated Case Management System (ACMS).  As noted in the article, I specifically asked the Civil Division Manager's office for "procedural safeguards to prevent the improper sealing of future cases." 

Today, I searched the ACMS for a civil case captioned Child M. v. Montville Board of Education, Docket No. MID-L-6011-12 and the ACMS reported that the case was sealed. (Note that no information other than "Case Sealed" is available.) This is a case where a minor student accused the Montville school district of allowing a male teacher who had been accused of sexual misconduct toward students to resign.  His resignation permitted the teacher to be rehired by another school where he allegedly continued in his misconduct to the student-plaintiff's detriment.  The Montville school district's dismissal from the suit was reversed by an August 25, 2016 Appellate Division decision which remanded the matter back to the Middlesex County trial court.  (For background, see the August 25, 2016 Daily Record article entitled "Court: Montville school officials had duty to report 'touchy-feely' teacher.")

While I understand that certain records within the case need to be sealed (e.g. those that identify the child victim, etc.), there is no legitimate reason to seal the entire file and deprive the public from even knowing about the lawsuit's existence.  At the very least, a person who searches the ACMS for "Montville Board of Education" should be able to identify that this case exists.  As it is, the case has simply "disappeared" from the system.

I ask that you investigate this matter.  If you find that the sealing of the entire case file was a clerical error, it is not enough for you to simply have this specific instance of the error corrected.  Given that this the second "disappeared" Middlesex case I have encountered in less than two years, it is very likely that there are others that I do not (and, indeed, cannot) know about.  The absence from the public record of these cases' very existence is troubling.

I look forward to hearing from you regarding this matter.

Very truly yours,

Monday, February 6, 2017

Judge rules that Willingboro violated OPRA by failing to disclose draft, unsigned lawsuit release.

On January 31, 2017, Burlington County Assignment Judge Ronald E. Bookbinder issued a twenty-eight page opinion holding that a proposed release exchanged between a lawsuit's parties was disclosable under the Open Public Records Act (OPRA).  The Township of Willingboro, the defendant in the lawsuit, had argued that the unsigned release and its cover letter were exempt as attorney-client privileged, as advisory, consultative and deliberative and as communication between a public entity and its insurer.  Bookbinder rejected all three defenses.

In addition to Bookbinder, judges in Mercer, Hudson, Passaic and Essex Counties have considered the issue of whether draft, unsigned releases and settlement agreements are disclosable under OPRA.  All judges have ruled that they are except for Mercer County Assignment Judge Mary C. Jacobson.

The lawsuit plaintiff, Libertarians for Transparent Government, was represented by Walter M. Luers of Clinton.

Public spending disclosure rule inches closer to enactment.

During the summer of 2014, Parsippany-Troy Hills Township (Morris County) hired a consulting firm that was at least partially owned by the Township's recently retired Chief Financial Officer (CFO) and then refused to tell the public how much taxpayer money the consulting firm was to receive under the contract.

While the amount to be paid was listed in the contract itself, Township Clerk Yancy Wazirmas refused to provide a copy of the contract in response to my Open Public Records Act (OPRA) request because it "hasn’t been signed by the Administration (meaning Mayor James Barberio) and given to the Clerk’s Office yet.  That could take up to 30 days."  Further, I was denied access to the unsigned contract because it was considered "advisory, consultative and deliberative." And finally, neither the resolution that authorized the contract nor the Certificate of Available Funds (a certification that the CFO must provide showing that there are sufficient funds in a budget line to cover the contract's cost) disclosed the amount of the contract.

I felt strongly that public bodies, when they vote to approve a contract, should be required to create a publicly accessible document that discloses the maximum amount of public money that could be paid out under that contract.  Accordingly, on August 1, 2014, I (in my role as Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project) submitted a formal Petition for Rulemaking to the the Division of Local Government Services (DLGS) within the Department of Community Affairs seeking a rule amendment that would "require all Certifications of Available Funds to explicitly set forth the maximum dollar amount of the contract to be awarded."

The DLGS agreed with my proposal and published a formal proposed rule amendment in the January 20, 2015 New Jersey Register.  Unfortunately, it failed to move forward on the rule within one year, causing it to expire.  So, on March 16, 2016, I submitted a second, similar petition which is moving through the process.  In a formal proposal published in the February 6, 2017 New Jersey Register, the DLGS, after having reviewed a first round of public comments, has fine-tuned the proposed rule and has asked for more public comments prior to March 8, 2017.  After reviewing any comments received, I am hopeful that the rule will pass thus enabling taxpayers to better learn how their money is being spent.

Friday, February 3, 2017

GRC calls Kean U.'s 18 extensions seeking a total of 170 days to respond to an OPRA "clearly excessive."

The Government Records Council (GRC) is usually very accommodating to custodians who do not grant or deny records within the Open Public Record Act's (OPRA) seven business-day response period, as long as the custodian seeks an extension within that seven business-day period. 

So, if a custodian, on the sixth business day after an OPRA request is received, requests an extension to reasonably close, certain date, the GRC will typically find that the custodian complied with the seven business-day requirement. Unfortunately, some public agencies, the Division of State Police, for example, frequently (if not always) request extensions thereby reducing OPRA's seven business-day response to a near nullity.

There are, however, limits to the number and duration of OPRA extensions.  In the GRC's December 13, 2016 decision in Luis Rodriguez v. Kean University, the Council's executive director wrote that "[a]lthough extensions are rooted in well-settled case law, the Council need not unquestioningly find valid every request for an extension containing a clear deadline." He also wrote that the GRC has held in the past that a "custodian could not lawfully exploit the process by repeatedly rolling over an extension once obtained."

According to the GRC's executive Director's Findings and Recommendations, the Council analyzes extension requests on what is "reasonably necessary."  In order to make that determination, the Council goes through a three-step process.  First, it looks at "complexity of the request as measured by the number of items requested, the ease in identifying and retrieving requested records, and the nature and extent of any necessary redactions."  Second, it considers the amount of time that the custodian has already had to respond to the request.  Finally, it considers any extenuating circumstances that would hinder the custodian's ability to respond.

Applying these considerations to Rodriguez's request to Kean University, the executive director found that Kean's eighteen extension requests that added up to 170 days to turn over 435 pages of material "was clearly excessive and flies in the face of OPRA's mandate to 'promptly comply' with a records request."