Tuesday, July 19, 2016

Fourth judge asked to weigh in on non-residents' OPRA rights.

Three trial level judges have ruled on the question of whether non-residents have an enforceable right to file Open Public Records Act (OPRA) requests with New Jersey governmental agencies.  So far, Burlington County Assignment Judge Ronald E. Bookbinder and Ocean County Judge  Mark A. Troncone have ruled that they do and Atlantic/Cape May County Judge Nelson C. Johnson has ruled that they do not.  And, at least one of those cases is under appeal

In a June 24, 2016 lawsuit, Peter M. Heimlich, represented by CJ Griffin of Hackensack, as asked Gloucester/Salem/Cumberland County Assignment Judge Georgia M. Curio to rule on the same issue.  The case, Heimlich v. Educational Information & Resource Center, et al, Docket No. GLO-L-779-16 is currently pending a hearing for which no date has yet been set.

Monday, July 18, 2016

NJ Supreme Court grants certification in John Paff v. Galloway Township.

On July 15, 2016, the New Jersey Supreme Court granted certification (i.e. agreed to review) an April 8, 2016 Appellate Division ruling that held that the Open Public Records Act (OPRA) "does not require the creation of a new government record that does not yet exist at the time of a request, even if the information sought to be included in the new government record is stored or maintained electronically in other government records."

For those who wish to read the legal arguments that led to the Supreme Court's acceptance of the case, they are linked below:

Thursday, July 14, 2016

Lawyer to blogger: "Immediately cease and desist in your publication" of my client's confidential settlement agreement with a public agency.

On July 12, 2016, I published "Sparta school board confidentially paid $50,000 to settle former custodian's wrongful termination lawsuit."  I distributed a link to the article to area media (which resulted in Eric Obernauer of the New Jersey Herald publishing "Sparta school board settles suit with former custodian" on July 14, 2016) as well as to the lawsuit plaintiff's attorney.
Today, I received the following e-mail from the attorney who represented the former school custodian in the wrongful termination lawsuit:
Mr. Paff:

You have published what you know to be a confidential document without the authorization of the parties. I do not know how you obtained the agreement. You must immediately cease and desist in your publication of the agreement.

Very truly yours,

Mark J. Brancato
104 Elcock Avenue
Boonton, NJ 07005
Even though I have published over four hundred articles regarding settlements--many of them marked "confidential"--I have never received a "cease and desist" letter (and its implied threat of a civil action against me if I refuse) from anyone.

It has always been my understanding that the "confidentiality agreements" placed in settlement agreements bind only the parties to that agreement, not to media or members of the public who obtain those "confidential" settlement agreements through Open Public Records Act (OPRA) requests.  Indeed, the confidentiality clause in Acevedo's settlement agreement, set forth in full below, expressly states that it only applies to "Releasor" (i.e. Acevedo).
CONFIDENTIALITY. The Parties agree that the terms and conditions of this settlement and the claims upon which it was based shall remain confidential to the extent permitted by law. Releasor agrees that he will not publish, in any manner, or attempt to publish the terms of the settlement. The Parties agree that any request for information concerning the terms and conditions of this settlement and the claims upon which it is based will be governed by the Open Public Records Act, N.J.S.A. 47:1A-1, et seq. Releasor agrees not to discuss this case or settlement with the media, or third parties, other than immediate and trusted family members, medical providers or accountants and Releasor agrees to instruct her family members, accountants and attorneys of this confidentiality requirement.
Beyond the fact that I am not bound by the "confidentiality" provision within the agreement, nothing in my article could be construed to defame Acevedo (or anyone else), cast him a false light or violate his privacy.  And, even if I republished some false statement contained the lawsuit, such republication would almost certainly be privileged under the fair report or fair comment privileges.  In sum, I find no tenable legal basis for Mr. Brancato's demand.

Finally, as a matter of public policy, plaintiffs who recover money from public agencies cannot be allowed to keep the fact that those payments were made or their amounts from the taxpayers who funded them. If it were otherwise, taxpayers would be unable to judge whether elected officials' settlement decisions were reasonable or foolish or possibly corrupt.

Mr. Brancato's "cease and desist" demand is offensive and anathema to those who value governmental transparency.  Perhaps Mr. Brancato should "cease and desist" from attempting to suppress reports about public affairs.

Saturday, July 2, 2016

Judge: State must release names of cops who shot juvenile in Trenton.

In a June 30, 2016 written decision, Mercer County Assignment Judge Mary C. Jacobson held that the Attorney General's office and other law enforcement agencies must release the names of officers from the State Police and Mercer Sheriff's Department who fired fifteen shots at Radazz Hearns, then 14, on August 7, 2015.  In her 79-page ruling, Jacobson found that the State's "generalized concerns" for the safety of law enforcement officers, does not trump the public's rights under the Open Public Records Act (OPRA).  She did allow, however, that had the State "shown that threats to unnamed police officers had been made . . . the court may very well have" ordered that the officers' names be withheld.

In the same decision, Judge Jacobson also ruled in two cases filed by Richard Rivera.  One sought the names of Troopers involved in a fatal police shooting of Daniel Wolfe and the other sought the names of Troopers who used pepper spray, tear gas and loud noise emitters to disperse a crowd during radio station Hot 97's June 7, 2015 Summer Jam concert at Metlife Stadium.  River also sought Use of Force Reports that were generated as a result of those incidents.  Jacobson ruled that Rivera was entitled to the officers' identities but "reluctantly" ruled that the Use of Force Reports were exempt as criminal investigatory records.

Both Paff and River were considered "prevailing parties" and entitled to recover their court costs and attorney fees from the public agency defendants. Judge Jacobson gave the State until July 20, 2016 to release the Troopers' names so that it had time to consider whether or not to file an appeal.

I was ably represented in the case by CJ Griffin of Hackensack.

Thursday, June 30, 2016

Appellate Division, in a two to one vote, affirms disclosure of police dash-cam video.

In a June 30, 2016 decision, a three judge panel of the New Jersey Superior Court, Appellate Division, voted 2-1 to affirm a lower court's holding that a video of a police canine's alleged attack on a female motorist captured by a Barnegat patrol car's dashboard camera is disclosable under the Open Public Records Act (OPRA).

The two-judge majority, consisting of Jose L. Fuentes and John C. Kennedy, found that the recording was not a "Criminal Investigatory Record" because the Ocean County Prosecutor's Office (OCPO), the defendant in the case, could not prove both elements of that exemption: a) that the recording was "not required by law to be made" and b) that it "pertain[ed] to any criminal investigation."  Fuentes and Kennedy agreed with the trial judge, Ocean County Superior Court Assignment Judge Vincent Grasso, that a general order issued by the Barnegat Police Chief requiring the dash-cam recordings to be made qualified as "law" within the meaning of the exemption.  Since the recording was required by law to be made, the two-judge majority held that OPRA's Criminal Investigatory Record exemption did not apply.  The majority also rejected the OCPO's reliance on the Investigation in Progress exemption as well as seven other arguments made.

In his dissent, Judge Robert J. Gilson wrote that the the Barnegat Police Chief's general order does not have the stature of a "law" within the meaning of OPRA's Criminal Investigatory Record exception.  He also found sufficient proof in the record that the recording pertained to a criminal investigation.

The majority's ruling regarding the scope of the Criminal Investigatory Record exception contrasts with that made by another Appellate Division panel in North Jersey Media Group, Inc. v. Township of Lyndhurst.  Under court rules, Gilson's dissent gives the OCPO an automatic right to appeal to the New Jersey Supreme Court. The high court, which has also agreed to hear an appeal of Lyndhurst case, will likely settle the question in the next several months.

Saturday, June 18, 2016

Borough has three official newspapers. It seems that only one was notified of a special Borough Council meeting and that notification was late.

Update: July 15, 2016

In a July 14, 2016 letter, Borough Attorney Frederick C. Raffetto said that the Borough will re-vote the formal action taken at the March 23, 2016 meeting at the July 20, 2016 meeting.


Following is Libertarians for Transparent Government's letter to the Mayor and Borough Council.

Dear Mayor and Council:

As our name implies, Libertarians for Transparent Government is a non-profit corporation dedicated to improving transparency in New Jersey government.  The Jamesburg Borough Council's compliance with the Open Public Meetings Act came to our attention after we read the following on the sixth page of the Council's April 20, 2016 public meeting minutes
Tom VandeSande — 2 Fernwood Lane — Mr. VanDeSande requested a second public hearing since we had it on our agenda. His concern was with a notice that was placed in the newspaper on March 25, 2016 advertising a special meeting that was held on March 23, 2016. Administrator Jawidzik explained that it was not an advertisement, but only a notice that the newspaper didn't even have to publish.
Based on this, we made an Open Public Records Act (OPRA) request and received a response from Acting Clerk Sue Boulogne.  Both the request and response are on-line here.

Boulogne's response strongly suggests that the public was not properly notified of the Borough Council's March 23, 2016 special meeting.

N.J.S.A. 10:4-8(d) states:
“Adequate notice” means written advance notice of at least 48 hours, giving the time, date, location and, to the extent known, the agenda of any regular, special or rescheduled meeting, which notice shall accurately state whether formal action may or may not be taken and which shall be (1) prominently posted in at least one public place reserved for such or similar announcements, (2) mailed, telephoned, telegrammed, or hand delivered to at least two newspapers which newspapers shall be designated by the public body to receive such notices because they have the greatest likelihood of informing the public within the area of jurisdiction of the public body of such meetings, one of which shall be the official newspaper, where any such has been designated by the public body or if the public body has failed to so designate, where any has been designated by the governing body of the political subdivision whose geographic boundaries are coextensive with that of the public body . . .
Actual newspaper publication is not required.  The meeting notice must be sent early enough so that the newspaper, if it chooses to, could publish it at least 48 hours in advance of the meeting.  See, Worts v. Upper Township, 176 N.J.Super. 78 (Ch.1980). 

Resolution 026-01-06-16, as reflected in the January 6, 2016 Borough Council meeting minutes, states:
The Home News Tribune, Star Ledger and the Cranbury Press are hereby designated for the year 2016 as the official newspapers for the Borough of Jamesburg in the County of Middlesex for the publication of all legal notices and advertisements of the Borough and all its Boards, Bodies, Committees, Offices and Agencies, as required by N.J.S.A. 40:53-1, and the statutes in such case made and provided.
From all this, one would expect that Acting Clerk Boulogne would have sent timely notice of the March 23, 2016 to all three of the Borough's official newspapers.  Yet, the absence of e-mails to the Home News and Star Ledger in Acting Clerk Boulogne's response to our OPRA request suggests that those two newspapers were not notified at all.  And, it appears that the remaining newspaper--the Cranbury Press--received it notification too late.

Ms. Boulogne, in her response to our request, disclosed only one e-mail being sent on March 17, 2016 to legalnotices@centraljersey.com.  That e-mail address is for the Packet Media Group which consists of five newspapers, one of which "The Cranbury Press" which, according to the newspaper's website, publishes on Fridays

So, if the Borough sent an e-mail on Thursday afternoon to a paper that publishes on Friday, we seriously doubt that the e-mail would have been in time to meet the Press's publication deadline for the March 17th edition.  Having missed that deadline, the first time that the notice could have been published was on March 25, 2016, which is consistent with Mr. VanDeSande's statement.

In sum, it appears that the public was not properly notified of the Borough Council's March 23, 2016 special meeting.  Of the three official newspapers designated by the Council, only one was notified and that notification was late.

Would you be good enough to discuss this issue at your July 20, 2016 meeting?  We would greatly appreciate learning your thoughts on this matter.

Thursday, June 9, 2016

OPRA lawsuit seeks nature of conduct underlying harassment complaints and terms of separation deal that Township made with resigned mayor.

On April 25, 2016, I blogged about a South Jersey mayor's abrupt resignation which he originally attributed to being "too busy in life" but later appeared to have been motivated by harassment complaints filed by four Township employees.  This week, a new Open Public Records Act (OPRA) lawsuit has been filed that challenges the denial of records related to the harassment matters and the Township's manner of dealing with them.

The lawsuit, which was filed on June 6, 2016, seeks records revealing the nature of the conduct underlying the four employee harassment complaints apparently directed toward former Commercial Township (Cumberland County) Mayor Judson Moore, Jr as well a "Signed and Sealed Memorandum of Understanding" that sets forth the terms of conditions relating to Moore's March 2016 resignation.  The lawsuit specifically asks that the names of the employees who were allegedly harassed and identifying information regarding them remain confidential.  The lawsuit chronicles Moore's history of public service and notes that he had previously separated from Bridgeton, Somers Point and Fairfield under unusual circumstances.

The lawsuit, which is captioned Libertarians For Transparent Government v. Commercial Township, et al, Docket No. CUM-L-402-16, will be heard by a Cumberland County Superior Court judge, most likely Assignment Judge Georgia Curio, in the next several weeks.  Plaintiff is being represented by CJ Griffin of Hackensack.