Friday, October 21, 2016

Kearny admits to at least five year delay in transcribing its Town Council closed session minutes. Blames lack of staffing and municipal budget woes.

In her October 20, 2016 response to a Government Records Council (GRC) Denial of Access Complaint, Patricia Carpenter, Clerk of the Town of Kearny (Hudson County), admitted that her office has not yet transcribed the minutes of Town Council nonpublic (closed or executive) meetings held as early as September 8, 2011.

In her Statement of Information (SOI) to the GRC, Carpenter wrote:
The Closed/Executive Session meeting minutes requested have not been released because they have not been transcribed. Therefore, they were not available for release when the request was received.

The Town of Kearny's municipal budget over the years in question suffered a reduction in staffing in all departments which ultimately had a negative impact on the Town Clerk's office and the many essential functions within the department.

Without the necessary staffing in the Clerk's Office due to budget constraints, the transcription of the Closed/Executive Session minutes have been delayed.

Currently, the fiscal condition of the Town of Kearny has improved and the necessary staffing should be in place to provide the requested documents by November 15, 2016.
The complaint to which Carpenter responded, Libertarians for Transparent Government (LFTG) v. Town of Kearny, GRC Complaint No. 2016-261, referenced two Open Public Records Act (OPRA) requests that Carpenter's office acknowledged but then abandoned.  In its May 10, 2016 request, LFTG requested five sets of closed minutes and resolutions, including those from September 8, 2011.  Carpenter disclosed the resolutions on May 17, 2016 but said that "additional time [is] required" to produce the minutes.  Carpenter had not responded further on that request when LFTG filed its Denial of Access Complaint on September 19, 2016.

The other request, filed on June 6, 2016, asked for the Kearny Town Council's  March 25, 2008; April 9, 2013 and May 8, 2012 closed session resolutions and minutes and, if none existed, "the minutes of the three most recently held Town Council closed sessions for which minutes can be disclosed in whole or in part."  Again, Carpenter told LFTG that she needed additional time and then took no further action to fulfill the request.  Carpenter's October 20, 2016 response to the GRC did not explain why Carpenter's office failed to disclose any of the records sought in the June 6, 2016 request.

According to the Open Public Meetings Act, N.J.S.A. 10:4-14, government agencies, including municipal governing bodies, are required to make the non-exempt portions of their closed meeting minutes "promptly available" to the public.

LFTG is being represented in this matter by Ted M. Rosenberg of Moorestown.

Thursday, October 13, 2016

Gloucester judge rules that OPRA can be used by all persons, not just New Jersey "citizens."

Georgia M. Curio, Assignment Judge for the Cumberland/Salem/Gloucester Vicinage, ruled today that a Georgia-based investigative blogger is to use the Open Public Records Act (OPRA) to obtain records from New Jersey government agencies.  In the case,  Heimlich v. Educational Information & Resource Center, et al, Docket No. GLO-L-779-16, Curio rebuffed the Educational Information & Resource Center's claim that Hoffman was not entitled to use OPRA because he "provided no evidence that [he was] a citizen of New Jersey."

Curio, sitting in Woodbury, delivered her ruling orally from the bench and is unlikely to issue a written decision.  She is the fourth judge to weigh in on the issue.  Her opinion is in accord with decisions reached by Burlington County Assignment Judge Ronald E. Bookbinder and Ocean County Judge Mark A. Troncone.  It is at odds with two decisions issued by Atlantic/Cape May Judge Nelson C. Johnson.

Heimlich was represented by CJ Griffin of Hackensack.

Wednesday, October 12, 2016

New Jersey Court records that cost $6.15 in 2015 cost $770 in 2016.

I encountered a bit of sticker shock yesterday when I received a $770 quote from the Clerk of the Superior Court to produce municipal court reports that I routinely purchased for less than ten dollars in 2015.  I use these reports to identify prosecutions under municipal code provisions of questionable legality--usually "disorderly conduct" or "loitering" codes.  And, I have used these prosecutions over the years to convince several municipal councils to repeal the outdated code provisions.  Unless I am able to find an inexpensive way to get these reports, I will have to cease my advocacy in this area.

Following is my letter and records requests to Carole Cummings, the Trial Court Administrator for the Camden Vicinage.  Ms. Cummings has always been responsive and helpful in the past and I hope that she will come through for me this time as well.

October 11, 2016

Carole E. Cummings
Trial Court Administrator, Camden Vicinage
101 South 5th Street
Camden NJ, 08103
via e-mail only

Dear Ms. Cummings:

I have placed on-line my records request form and what follows is my reason for submitting it.  Also on-line is a file of Bates numbered exhibits which are referenced below.  In addition to responding to my records request, I would appreciate it if you could provide me with any other information that will enlighten me on the Judiciary's records fulfillment procedure.

By way of background, I submitted a records request (Bates No. 1) on July 28, 2016 to the Bellmawr (Camden County) Municipal Court for that court's "NJ Automated Complaint System Law Enforcement Disposition Reports" for a three-month period beginning Friday, April 22, 2016 and ending Friday, July 22, 2016.  Within the same request I also sought the Bellmawr court's "most recently updated 'Local ACS List'."

On August 15, 2016, I considered the Bellmawr Court's failure to respond to my request a denial and filed an appeal (Bates No. 2) with your office in accordance with R.1:38-10(b). By letter dated August 17, 2016 (Bates No. 3), you informed me that my request had "been forwarded to the Superior Court Clerk's Office for resolution."  After about six weeks, I received an October 3, 2016 response (Bates No. 4) from the Superior Court Clerk's office in Trenton advising me that it will cost $770 to fulfill my request.

There are two areas that perplex me.  First, why does the Superior Court in Trenton now handle records requests that were previously handled by the municipal courts?  Second, why does fulfillment of this request cost more than one hundred times what previous, similar requests have cost?

Over the past several years, I have ordered the same reports that I requested from Bellmawr from dozens of municipal courts across New Jersey.  By using these reports, I am able to identify cases where defendants have been prosecuted for violating municipal code provisions that are unconstitutional and/or preempted by the New Jersey Criminal Code.  Being able to prove that such prosecutions have recently occurred enables me, through my position as Chairman of the New Jersey Libertarian Party's Preempted Ordinance Repeal Project, to advocate for repeal of the offending municipal code provisions. 

For example, my April 24, 2015 letter to Woodbridge (Bates No. 5 - 7) argued that the Township's Disorderly Conduct code (Bates No. 10), which created constitutionally dubious offenses such as "us[ing] loud, abusive or offensive remarks" in public, was being actively enforced by the local police department and prosecuted by the municipal prosecutor.  My proof that recent enforcement and prosecution had occurred consisted of pages from the "NJ Automated Complaint System Law Enforcement Disposition Report" (Bates No. 9) and "Local ACS List" (Bates No. 8) that I had previously obtained by way of a records request to the Woodbridge Municipal Court.  These reports, which are are the same reports that I had requested from the Bellmawr, showed that Code ¶ 30-3 was an offense still recognized by the Woodbridge Court and that the recipient of Summons No. S-2014-002630 had been convicted on March 2, 2015 of violating ¶¶ 3-30.1 and assessed $533 in fines and costs.  This was but one of dozens of similar cases that the reports revealed.  This evidence, when presented to the Woodbridge Township Council, caused the Council to repeal the Disorderly Conduct code.  See, the Home News and Tribune's June 16, 2015 article "Loitering not against the law in Woodbridge anymore."

My ability to effectively advocate in this manner depends on the prompt availability of the "NJ Automated Complaint System Law Enforcement Disposition Reports" and "Local ACS Lists" at a reasonable cost.  Up until recently, I was able to obtain these necessary reports directly from the local municipal court administrator for $.05 per page.  As evidenced by Bates No. 11, the one-hundred or so pages of reports that I had received from Woodbridge cost me $6.15 in copying and postage costs.  Other than these reports, I know of no way to identify recent enforcement of preempted and/or unconstitutional municipal code provisions. And, my experience has shown that absent an example of recent enforcement, municipal governments are apt to claim that there is no need for repeal because the offending code provision is no longer being enforced.

I am not sure why the rules changed so that I can no longer obtain these reports from the local municipal courts.  I also do not understand why reports that cost $6.15 in 2015 are cost $770 in 2016.  I am hoping that your response to the enclosed records request will help me understand what happened and provide a path by which I can continue to obtain these records for a reasonable fee.

Thank you for your attention and I appreciate your cooperation in this matter.

Very truly yours,

Sunday, October 9, 2016

OPRA lawsuit seeks Use of Force Reports filed by officers who "struggled" with "belligerent" man shortly before he died.

Prosecutor Andrew C. Carey
On Thursday, October 13, 2016 at 9:30 a.m., Middlesex County Assignment Judge Travis L. Francis will hear argument on an Open Public Records Act (OPRA) case that seeks the names of police officer who struggled with an allegedly belligerent man who was lying in a Highland Park street and who died shortly thereafter.  The suit also seeks Use of Force Reports, police incident reports as well as e-mails and text messages related to the incident.

The lawsuit--Libertarians for Transparent Government (LFTG) v. Middlesex County Prosecutor's Office (MCPO), et al, Docket No. MID-L-5006-16--seeks records pertaining to the June 2, 2016 death of Daniel Nagahama.  The only information thus far released about the twenty-eight year old's death is contained in the MCPO's June 4, 2016 press release entitled "Man dies hours after struggle with police."  The press release states only that Nagahama "was found on South Fifth Avenue in Highland Park on June 2, 2016 at 5:15 p.m" and that he was pronounced dead at 8:28 p.m. at Robert Wood Johnson University Hospital after "he became belligerent and struggled with" unnamed police officers who "had revived him."

The MCPO denied LFTG's request for the police incident reports and Use of Force Reports related to the incident claiming that they are Criminal Investigatory Records and thus exempt in accordance with the Appellate Division's June 11, 2015 ruling in North Jersey Media Group, Inc. v. Township of Lyndhurst.  The MCPO also refused to name the officers who had interacted with Nagahama and denied as "unduly burdensome" LFTG's request for case-related e-mails and texts sent or received by MCPO employees during a 17-day period surrounding Nagahama's death.

In her brief, LFTG's lawyer, Hackensack attorney CJ Griffin, argued that the Lyndhurst case (the case relied upon by the MCPO) was wrongly decided and that Judge Francis ought to instead follow the Appellate Division's June 30, 2016 conflicting opinion in John Paff v. Ocean County Prosecutor's Office.  Griffin wrote that the Lyndhurst case, which is being reviewed by the New Jersey Supreme Court, "has essentially shut down access to all law enforcement records that even tangentially relate to criminal investigations."  She wrote that Judge Francis is free to follow either the Lyndhurst or the Ocean County Prosecutor decision until the matter is resolved by the Supreme Court.

The Borough of Highland Park was also named in the lawsuit because LFTG also requested records from the Borough's police department that related to Nagahama's death.  In its response, the Borough said that it "has been instructed by the MCPO to not release any documents while the MCPO's investigation is pending. As the MCPO is the lead law enforcement agency for Middlesex County, the Borough must follow this order, and accordingly cannot release any documents independently." 

The hearing is open to the public and press.  Its date, hour and location, however, are subject to change.  Anyone who plans to attend, should call the court offices at 732-519-3413 the day prior to confirm that the hearing date and hour have not changed.

Mercer judge to rule on disclosability of draft settlement agreements and correspondence.

On September 6, 2016, I wrote about cases against Caldwell Borough (Essex County) and Jersey City (Hudson County) where courts were asked to determine whether settlement documents traded between the parties to a lawsuit (where one party is a government agency) are subject to disclosure under the Open Public Records Act (OPRA).  (The plaintiff, Libertarians for Transparent Government (LFTG), won its case against Caldwell, with Judge Frank Covello ordering Caldwell to pay $5,200 for LFTG's costs and attorney fees.  Judge Daniel D'Alessandro, who is handling the Jersey City matter, heard preliminary arguments on September 30, 2016 and ordered more briefing.)

On October 14, 2016, Mercer County Assignment Judge Mary C. Jacobson will hear another, similar case at 2 p.m. at the New Criminal Courthouse, 400 S. Warren Street in Trenton.  In that case, Libertarians for Transparent Government v. College of New Jersey, Docket No. MER-L-1534-16, Judge Jacobson will determine whether a settlement e-mail exchanged between the College and the attorney for an age discrimination plaintiff was subject to disclosure under the OPRA. (The lawsuit, I later learned, settled for $145,000.)

LTFG is being represented by Richard M. Gutman of Monclair and the hearing is open to the press and the public.  Those who wish to attend are urged to call the court office at 609-571-4499 prior to the hearing to ensure that it hasn't been postponed.

Thursday, October 6, 2016

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.

Michael Doss v. Borough of Bogota, et al.
Bergen County, Docket No. BER-L-4296-16
Hon. Bonnie J. Mizdol, A.J.S.C.
July 13, 2016
Click here for the court's decision.

Summary:  This case discusses the records custodian's duty to adequately search for responsive records and found that the custodian's search was insufficiently thorough.  The case also balances a government employee's privacy interest in his or her government-issued cell phone billing records versus the public's right to know.

Wednesday, October 5, 2016

Appellate Division to rule on school board's closed session minutes redaction case.

An interesting appeal awaits an Appellate Division decision.  The case challenges a Gloucester County judge's ruling that a school district, in response to an Open Public Records Act (OPRA) request, could redact 100% of the substantive portions of the minutes of a nonpublic (closed or executive) meeting held some fourteen months earlier.

The case is Dean Smith v. Swedesboro-Woolwich School District, et al, Appellate Docket No. A-000840-15 and links are provided for Smith's Brief and Appendix, the school board's Brief and Appendix and Smith's letter in lieu of a reply brief.  The minutes at issue apparently contain board members' discussion regarding renewal of the superintendent's contract.

Appellant Smith's attorney, Donald M. Doherty, Jr. of West Berlin, argued that suppressing 100% of the private discussion was contrary to a 1991 New Jersey Supreme Court case that interpreted an exception to the Open Public Meetings Act's that allows public bodies to discuss personnel matters in private.  That Court held that the exception was "'designed to enable the public body to determine the appropriate action . . . [and] not to withhold from the public either the public body's determination' or the rationale for such determination."  Doherty said that his client can discern nothing from the heavily redacted minutes that disclose what action the Board took or why the action was taken.

Doherty argued that even though the school board provided some justifications for the redactions, including exemptions for personnel records, attorney client privilege and the advisory consultative and deliberative privilege, the justifications were not specific to each line that was blacked out.  He wrote that given the above cited Supreme Court case, the school board was burdened with showing that there was some "particularized need to continue withholding the details of the minutes some 14 months after the meeting occurred."  Doherty argued that "blanket statements" of privilege "do not allow the public to know or discern with any reasonable clarity what was discussed in the nonpublic meetings or what actions were taken."

The hearing in the trial court was conducted by Gloucester County Assignment Judge Georgia M. Curio who on September 8, 2015 dismissed Smith's case after having heard argument on August 27, 2015.  Curio, who had the benefit of reviewing the unredacted version of the minutes, said that she sympathized with Smith because he "is flying blind" but ruled that she was "satisfied that each and every line is subject to one or the other, and sometimes more than one appropriate exemptions."