Tuesday, November 17, 2015

OPRA lawsuit seeks police Internal Affairs "Index Files."

Mitchell A. Little
Toms River Police Chief
On Friday, December 11, 2015, 2:30 p.m., Ocean County Superior Court Robert E. Brenner will hear argument on a pair of cases that challenge the Toms River's and Seaside Park's refusal to disclose their police departments' Internal Affairs "Index Files" to an Open Public Records Act (OPRA) requestor.

Police Index Files, examples of which are on-line here, are tables that list factual information, such as the complainant's name, the officer's name, nature of the conduct complained about and a unique control number, for each Internal Affairs complaint that a police department receives.  CJ Griffin of Hackensack, who is representing plaintiff Richard Rivera in the case, has submitted a brief that clearly outlines the issued in the case and argues that at least redacted versions of the Index Files should be disclosed.

The New Jersey Attorney General has entered into this as an amicus curiae (friend of the court) and has joined Toms River and Seaside Park in arguing that records should be suppressed.

The hearing, which is open to the public, will be held in Courtroom #4 at the Courthouse at 100 Hooper Avenue, Toms River.  Those who wish to attend are cautioned to telephone the court at 732-506-5300 the day prior to the hearing to confirm that the hearing hasn't been cancelled or adjourned.  Refer to Docket Nos OCN-L-225-15 and OCN-L-452-15

Sunday, November 15, 2015

NJ Supreme Court to determine OPRA's applicability to security camera footage.

Stuart Rabner
Chief Justice
On November 6, 2015, the New Jersey Supreme Court agreed to hear Bloomfield Township's (Essex County) appeal of a May 13, 2015 Appellate Division ruling that required the Township to provide an Open Public Records Act (OPRA) requestor with 14 hours of video taken by a stationary camera located on the back of Bloomfield's municipal building.

In its July 10, 2015 submission to the Supreme Court, Bloomfield argued that the Appellate Division's ruling would burden public agencies that have security cameras by requiring them to watch hours and hours of recorded videos in their entirety to determine whether they contain confidential or exempt material.  This burden, according to Bloomfield, "could result in governmental entities simply turning off their video surveillance equipment, or not increasing their security measures, simply to avoid" having to watch hours of recorded video requested under OPRA.

Saturday, November 14, 2015

Court to determine disclosure of investigative records related to allegations of misconduct by Cape May Sheriff.

Gary G. Schaffer
Cape May County Sheriff
On Tuesday, December 8, 2015 at 10:30 a.m. Mercer County Assignment Judge Mary C. Jacobson will hear oral argument in the case of John Paff v. New Jersey State Police, et al, Docket No. MER-L- 1984-15.

At issue are two State Police investigation reports pertaining to allegations that Cape May County Sheriff Gary G. Schaffer was involved in misconduct or impropriety while he worked at the Cape May Police Training Academy and the Ocean City Aquatic Center.

The State Police have admitted that it possesses two investigation reports into Schaffer's alleged misconduct but refused to release them because they are "exempt from access as criminal investigative records."  My lawyer, CJ Griffin of Hackensack, argues that under the common law right of access citizens have a great need to see the records so they can assure themselves that the allegations were fairly investigated and not just swept under the rug.

When Shore News Today reporters asked Sheriff Schaffer last year for a comment on the investigation, he was quoted as having said that he would “not comment on a blog.”

Friday, November 6, 2015

Memory hole located in Bloomfield Township.

Today, I learned that the Bloomfield Municipal Court (Essex County) did not prepare a formal complaint (called a CDR or special form of complaint) in 2012 when a citizen sought to file a complaint against a police officer from Middlesex County.  Rather, the Bloomfield court recorded the citizen's complaint on its own informal "Complaint Information Form."

CDRs and special forms of complaint each bear a unique control number and must be entered into the Automated Complaint System (ACS) (i.e. the municipal court's centralized computer system) when completed.  This allows cases to be identified by and tracked through the ACS.  An example of a CDR is on-line here.

Bloomfield's "Complaint Information Form," however, is just a letter-sized piece of paper which bears no control number and is not entered into the ACS.  This means that a person who queries the ACS for a complaint will not find it if it was recorded on Complaint Information Form instead of a CDR or special form.

The complaint at issue was brought by Joseph Scurese against Bernadette Yates.  It was found to have probable cause by the Bloomfield Municipal Court and proceeded to mediation.  Yet, no CDR or special form of complaint ever issued.  Had I not learned about Scurese's complaint from reading his civil lawsuit, I would have never been able to find it by querying the ACS.

Sunday, October 25, 2015

Teaneck Township Council Executive Session minutes on-line.

Many municipal councils, including Teaneck Township (Bergen County) put their public meeting agendas and minutes on their websites.  Unfortunately, town councils very rarely put their closed or executive meeting minutes on-line.

As a public service, I have obtained redacted versions of the Teaneck Council's executive session minutes from April 2013 through June 2015 and have placed them on-line here.  The resolutions that the Council passed in public to authorize these closed sessions are on-line here.

Saturday, October 24, 2015

Fired Bound Brook teacher settles grievance against school board.

On September 16, 2015, a Bound Brook High School art teacher who was fired last November settled a grievance that she and her union had filed against the Bound Brook Board of Education.

In the Settlement Agreement and General Release, the teacher, Kimberly Charnuska, agreed to fully release the Board "from any and all claims, known and unknown, resulting from anything which has happened."  In return, the Board agreed to keep "any investigation records and notes relating to allegations of misconduct" out of Charnuska's personnel file.

The release appears to be related to a "suspicious incident" that Bound Brook High School Principal Dan Gallagher reported "a possible inappropriate relationship between a student and a teacher" to police on October 29, 2014.  Charnuska was the "suspect" listed on the police report and the alleged victim was a juvenile. Charnuska was suspended with pay on the same day was terminated on November 24, 2014.

Wednesday, October 21, 2015

Court: Citing FERPA, without more, is sufficient to justify sixty-three redactions.

In an October 20, 2015 oral decision, Mercer County Assignment Judge Mary C. Jacobson dismissed an Open Public Records Act (OPRA) case that challenged the legality of the New Jersey Department of Education's (DOE) justification of sixty-three separate redactions from two special education settlement agreements with the following blanket explanation: "The records have been redacted to protect the reasonable expectations of privacy related to student identification/confidentiality rights under Family Education Rights and Privacy Act ("FERPA") 20 U.S.C.Sect. 1232g and N.J.A.C. 6A:32-7.1, et. seq."  Judge Jacobson held that the DOE's invocation of "FERPA," without more, was sufficient.  Her written order is on-line here.

While the nature of many of the redactions at issue in the case of Paff v. New Jersey Department of Education, et al, Docket No. MER-L-1523-15 could be determined by the context of the sentence containing the redaction, others could not.  My brief, authored by CJ Griffin of the Hackensack-based Pashman Stein law firm, used the following two sentences from the agreement that settled P.A. and J.A. o/b/o A.A. v. Millburn Township Board of Education and Madison Board of Education, OAL Docket No. EDS-18665-2013N as an example:
The District agrees to reimburse Petitioners five thousand ($5,000) toward the educational costs of [REDACTION] for November 2011 through October 2012. The reimbursement shall be provided to the parents within 30 days of receipt of invoices, [REDACTION], and proof of payment. . 
While the first redaction is clearly the student's name, the second redaction appears to be the type of documentation that the parents need to provide in order to receive reimbursement.  It is difficult to see how disclosure of this reimbursement prerequisite could reveal the student's identity.

An October 8, 2015 certification by DOE Records Custodian Donna Fletcher-Lugo provides a bit more, but not much, additional information on the nature of each redacted element.