Thursday, July 20, 2017

Middlesex Prosecutor releases "Use of Force" reports related to Edison man's death after police encounter.

Prosecutor Andrew C. Carey
On June 4, 2016, the Middlesex County Prosecutor's Office (MCPO) issued a press release that reported that Daniel Nagahama of Edison was pronounced dead on June 2, 2016, three hours after he had an encounter with Highland Park police.  The press release did not report the names of the Highland Park officers with whom Nagahama had the encounter nor did it report what types of force, if any, the officers employed.  All that was reported was that Nagahama became belligerent and struggled with police after they attempted to revive him, that he was not placed under arrest but was taken to the hospital by rescue workers.

In August 2016, Libertarians for Transparent Government, a New Jersey nonprofit organization (LFTG), represented by Hackensack lawyer CJ Griffin, filed a lawsuit against the MCPO seeking additional records that would disclose the names of the officers, the type of force they used and other details that would provide more details and give better context to Nagahama's death.  Details on that suit are set forth in this article.

On November 18, 2016, Middlesex County Assignment Judge Travis L. Francis ruled that the Use of Force reports completed by Highland Park officers were public records that needed to be disclosed. He ruled, however, that other requested records were exempt from disclosure.  Later, Judge Francis stayed disclosure of the Use of Force Reports pending the Supreme Court's ruling in North Jersey Media v. Lyndhurst where one of the issues to be decided was whether Use of Force Reports were exempt from disclosure.

On July 11, 2017, the Supreme Court decided in the Lyndhurst case that Use of Force reports are public records that must be disclosed under the Open Public Records Act (OPRA).  Given that ruling, the MCPO released the Use of Force reports.  The MCPO also agreed to pay $8,300 to cover LFTG's court costs and attorney fees.

The Use of Force Reports, while sparse, do show that four Highland Park officers encountered Nagahama prior to his death: Sergeant Jason C. Culver and Patrolmen Brian O'Mara, Kevin M. Garrity and Christopher DeCosta.  All four reported that Nagahama was arrested (contrary to the press release), that he was "under the influence" and "resisted police officer control."  All four also reported that they placed Nagahama in a "compliance hold" and used their "hands/fists" during the encounter.  Additionally, O'Mara reported that he used a "chemical/natural agent" during his encounter with Nagahama.

Tuesday, June 20, 2017

Supreme Court rules that fields of data extracted from e-mails are OPRA "government records."

In a unanimous decision issued today in John Paff v. Galloway Township, et al, the New Jersey Supreme Court held that under the Open Public Records Act (OPRA), "information in electronic form, even if part of a larger document, is itself a government record [and that] electronically stored information extracted from an email is not the creation of a new record or new information; it is a government record."

Thus, it appears that going forward, the public is generally entitled to information stored in government databases, subject to normal confidentiality constraints and payment of a service charge if extraction of the requested data requires “a substantial amount of manipulation or programming of information technology.”

In its ruling, the Court rejected the Appellate Division's April 18, 2016 opinion that held that for electronically stored information, “OPRA only allows requests for records, not requests for information.”  The Supreme Court held that the Appellate Division's "position cannot be squared with OPRA’s plain language or its objectives in dealing with electronically stored information."

The Supreme Court also ruled that courts are to grant no deference to decisions or information advice given by the New Jersey Government Records Council (GRC) except when the Appellate Division considers appeals of GRC decisions.  It also recognized that while "[i]t may take only two to three minutes for an IT Specialist to make accessible fields of information from two weeks of emails; it will take considerably longer for the Township Clerk and Chief of Police to determine whether the requested information in each email may intrude on privacy rights or raise public-safety concerns."  Accordingly, the Court remanded the matter back to the trial court to address any such confidentiality concerns.

I was ably represented in the case by Walter M. Luers of Clinton.

Sunday, June 18, 2017

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.

Agustin Garcia v. Bergen County Prosecutor's Office et al, Docket No. BER-L-6475-16
Hon. Bonnie J. Mizdol, A.J.S.C.
February 13, 2017
Click here for the court's decision.

Summary:  An inmate serving a life sentence for murder is precluded from filing any more OPRA lawsuits without prior approval from the court because the inmate has demonstrated a pattern of filing frivolous and baseless OPRA lawsuits.  I have been informed that this case is currently under appeal.

Wednesday, June 14, 2017

Appellate Division rebuffs OPRA requestor's Declaratory Judgment Act lawsuit.

In Stop & Shop Supermarket v. County of Bergen, a three-judge panel of the New Jersey Superior Court's Appellate Division today issued a published decision holding that a record requestor's suit that sought a declaration that Bergen County violated the Open Public Records Act (OPRA) by failing to disclose an important document in response to a 2011 records request was mooted by the County's production of that document in response to the requestor's 2014 request.

The document at issue, an engineering report authored in January 2011, was within the scope of the supermarket's July 2011 OPRA request but the County did not acknowledge the report's existence when responding to that request.  The report's existence became known to the supermarket only after the county disclosed it in response to a the supermarket June 2014 request. The supermarket filed a lawsuit under the Declaratory Judgment Act that sought a ruling that the County violated OPRA by failing to disclose the engineering report in response to its 2011 OPRA request.  The lawsuit also sought an order requiring the County to pay the supermarket's legal fees for bringing the lawsuit.

The trial court granted the County's motion to dismiss.  The court held that the lawsuit was moot and that an attorney fee award was not warranted because the supermarket had the engineering report in its possession prior to the lawsuit's filing.  The Appellate Division affirmed the dismissal and noted that the the supermarket's only available OPRA remedy was to seek imposition of a civil penalty against the County's records custodian for having knowingly, willfully and unreasonably denied access to the report in 2011.  The supermarket, however, did not seek imposition of a penalty.

Tuesday, May 23, 2017

Township in Cumberland County "unable to locate" some closed meeting minutes; will approve years of other closed meeting minutes at June 7th meeting.

Update: The agenda of the June 7, 2017 Township Committee meeting shows that approval was sought for  "Closed Session Minutes From July 3, 2002 Through April 19, 2017."
The Open Public Meetings Act (OPMA) requires public bodies to make the minutes of their meetings, both public and non-public (i.e. closed or executive), "promptly available to the public."  Recent correspondence with one South Jersey township reveals that minutes from closed meetings held five years ago are still not available for public inspection and that minutes from closed meetings held in the 1980's and 1990's have apparently been lost forever.

A May 16, 2017 Open Public Records Act (OPRA) request to Deerfield Township in Cumberland County sought "the minutes of the three (3) most recently held [closed] Deerfield Township Committee meetings for which minutes are available in either full or redacted form."  The request went on to explain that if "the three most recent closed meetings for which minutes are available in whole or part took place ten years ago in April, May and June of 2007, then those would be the minutes that are responsive to this request."

In her May 18, 2017 response, Clerk/Administrator Karen Seifrit wrote that "due to the current unavailability of closed/executive session minutes, there will be a delay in filling your request" and that the closed minutes "need to be approved at the Township’s June 7th meeting."

On the same day that I received her response, I (in my role as Executive Director of Libertarians for Transparent Government (LFTG), which submitted the OPRA request) wrote back to Seifrit.  I wrote that I was astonished at her response because it suggested that the Township considers its closed session minutes from decades ago to still be wholly exempt from public inspection.  (Seifrit's May 18th response and my reply of the same date are on-line here.)

In order to clarify matters, LFTG submitted another OPRA request seeking minutes of two closed sessions that the Township's on-line public meeting minutes show as having been held on March 7, 2012 and June 20, 2012.  The request also sought the minutes of every closed session held in 1983 and 1996.

On May 22, 2017, Seifrit responded to the second OPRA request.  She wrote that the minutes for the March 7, 2012 and June 20, 2012 closed meetings will be approved at the June 7, 2017 meeting and that will disclose them by June 9, 2017.  As to the minutes of the 1983 and 1996 closed meetings, Seifrit wrote that she had "searched for those records and have been unable to locate same."

Seifrit's response presents two problems.  First, most members of the presently comprised Township Committee were not in office when the two 2012 meetings took place. Thus, a majority of the members who will be asked on June 7, 2017 to vote to approve the March 7, 2012 and June 20, 2012 closed meeting minutes were not present at either of those meeting. (Presently serving on the Committee are Frank Spatola, Jr. Mayor and Committee members Abigail Perlstein O'Brien, Rudy Danna, Jr., Bruce Murphy, II and John Stanzione.  According to the minutes of the public meeting held on June 20, 2012, the mayor was then named Laurella and the Committee members present were named Lauermann, Spatola, Stanzione, Montgomery.  Thus, only two members who served on the Committee in 2012 still serve on the Committee in 2017 (i.e. Spatola and Stanzione)). 

Second, New Jersey requires a municipality's meeting minutes to be retained permanently.  (See item no. 0508-0000 of the Municipal Agencies General Records Retention Schedule.)  Accordingly, Deerfield is under a duty to retain all its Township Committee meeting minutes, including those from 1983 and 1996, and a citizen who asks Seifrit for minutes should not be told that she is unable to locate them.

Deerfield's noncompliance with the OPMA is especially disappointing because I personally attended the December 4, 2013 Committee meeting and addressed the Committee during the public comment period about the importance of OPMA compliance.

Thursday, May 18, 2017

Court: OPRA Section 10 allows requestors to ask for personnel "information," does not require a request to be for specific, identifiable records.

In a May 11, 2017 unpublished opinion, Monmouth County Superior Court Assignment Judge Lisa B. Thornton ruled that N.J.S.A. 47:1A-10 requires a records custodian to disclose an 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" even if the request asked for that information instead of a specific, identifiable government record that contained that information.

On September 27, 2016, Libertarians for Transparent Government, a NJ nonprofit corporation (LFTG), submitted an OPRA request for the "date of separation and reason therefor" regarding a school district's former business administrator.  The school district's custodian denied the request because it asked for "information" as opposed to identifiable records.  Judge Thornton wrote:

There is no question that defendant violated the provisions of OPRA by failing to provide information regarding [the former business administrator's] date of separation and the "reason therefor." The court is not persuaded by defendant's argument that the request constituted a request for "information" as opposed to "government records." A plain reading of the statute reveals that "information," in the form of "an individual's name, title, position, salary payroll record, length of service, date of separation and the reason therefor" is specifically discoverable pursuant to N.J.S.A. 47:1A-10.

There are other aspects to this case, which are explained in my October 30, 2016 article.

Monday, May 15, 2017

Court to rule on whether Cumberland SPCA is subject to OPRA.

Update 06/29/17: Judge Anne McDonnell issued a June 29, 2017 Order and Statement of Reasons holding that the CCSPCA is subject to the Open Public Records Act and violated plaintiff's rights by "failing to provide access to the requested records."
Update 05/18/17:  The CCSPCA's answer and opposing certification and brief are on-line here and most of the exhibits to the brief are on-line here.
On Thursday, June 1, 2017, Superior Court Judge Anne McDonnell will hear argument on whether the Cumberland County Society for the Prevention of Cruelty to Animals (SPCA) is subject to the Open Public Records Act (OPRA) and, if so, whether the SPCA improperly denied access to veterinary services invoices it submitted to the City of Millville.

The Cumberland SPCA chapter is under contract with the City of Millville, as well as other area municipal governments, to provide animal shelter and control services.  Part of the SPCA's agreement with Millville requires the City to reimburse the SPCA for veterinary services.  In response to a February 22, 2017 OPRA request submitted by Libertarians For Transparent Government (LFTG), Millville provided several pages of invoices that the SPCA had submitted.  Some of those invoices contained redactions (see, e.g. pp 15, 16 and 23 of Millville's 127-page response) which the City said "were made by the CCSPCA, not the City Clerk's Department."  The City also said that the redactions were "part of what triggered the investigation."  (I understand from speaking with sources that the investigation involved whether or not the SPCA passed on to the City discounts it had received from veterinarians.  I have no information regarding whether or not the allegations underlying this investigation were well founded nor do I have the results of any investigation.) 

LTFG then filed a second OPRA request with the Cumberland SPCA seeking unredacted versions of the invoices.  In response, SPCA lawyer Rocco Tedesco stated that he "want[ed] to make it clear that the Cumberland County SPCA/Vineland Animal Shelter does not consider itself subject to the Open Public Records Act."  Tedesco's response denied LFTG access to the unredacted invoices because the redacted portions of the invoices contained charges assessed to municipalities other than Millville and were, apparently in Tedesco's view, not relevant to LFTG's request. 

On April 21, 2017, LFTG filed suit against the SPCA.  The lawsuit claims that the SPCA and its county chapters are subject to OPRA because they were formed by the legislature and perform a number of traditional government functions, such as law enforcement.  The suit also argues that the Tedesco's refusal to disclose the invoices' redactions violated OPRA because nothing in OPRA permits a government agency to deny access to records that it believes aren't relevant to a request.

LFTG is being represented by CJ Griffin of Hackensack.  Griffin had previously won a similar suit against the Monmouth County SPCA chapter.