Friday, January 30, 2009

Court decides Paff v. Keyport - a mixed bag but more wins than losses

Superior Court Assignment Judge Lawrence M. Lawson issued a written opinion yesterday in my Open Public Records and Meetings Act lawsuit against the Keyport Borough Council and the Borough's record custodian (Paff v. Keyport Borough Council, et al, Docket No. MON-L-3317-07).

The opinion, along with the trial briefs, exhibits and other case documents are on-line here.
(file is about 2.5 MB).

Following are the five main points that I argued, and Judge Lawson's ruling on each of them:

1. WERE THE KEYPORT COUNCIL'S CLOSED AND PUBLIC MEETING MINUTES MADE AVAILABLE “PROMPTLY” IN ACCORDANCE WITH N.J.S.A. 10:4-14?

Judge Lawson agreed with me and issued a permanent injunction requiring the Keyport Borough Council to publicly disclose both its public meeting minutes and the nonexempt portions of its nonpublic (i.e. executive or closed) meeting minutes within 30 days after the meeting or prior to the next scheduled Council meeting, whichever occurs first.

2. DOES THE OPEN PUBLIC MEETINGS ACT PERMIT THE COUNCIL TO PRIVATELY DISCUSS ORDINANCES UNDER THE “POTENTIAL LITIGATION” EXCEPTION AND GENERAL EMPLOYMENT AND STAFFING MATTERS UNDER THE “PERSONNEL" EXCEPTION?

Judge Lawson agreed with Keyport that it was appropriate for the Borough Council to
discuss matters in closed sessions listed under topic headings "Loitering of Day Workers", "Proposed Ordinance-Smoking in Motor Vehicles with Children", K. Hovnanian, the "need to find someone on a three-man shift that can check parking in the business district" and a general question concerning Class I and Class II specials.

3. DOES THE PLAINTIFF’S RIGHT TO KNOW THE IDENTITIES OF SPECIFIC BOROUGH EMPLOYEES DISCUSSED DURING CLOSED SESSION OUTWEIGH THE BOROUGH'S NEED FOR CONFIDENTIALITY?

On the issue that was important to me--whether or not the Borough Council is allowed to redact from its closed meeting minutes the names of Borough officials who were subjected to discipline--Judge Lawson ruled in my favor. He ruled that under OPRA, I am entitled to the names of the specific officers and employees disciplined. However, Judge Lawson also ruled that I am not allowed access to a redacted word in the closed minutes that might reveal medical information about a police officer.

4. DID THE BOROUGH CLERK PROVIDE THE PLAINTIFF WITH A LEGALLY JUSTIFIABLE REASON FOR DENYING HIS REQUEST FOR E-MAILS AND FOR REDACTING CLOSED SESSION MEETING MINUTES?

Judge Lawson did not reach this question because he found that my challenge was time barred because it was not brought within 45 days after the denial. (Note: the decision that established the 45 day period, Mason v. City of Hoboken, was not decided by the Supreme Court until after I had filed my suit.)

5. SHOULD THE BOROUGH PAY PLAINTIFF'S COURT COSTS?

Judge Lawson found that I was the prevailing party and thus entitled to recover my costs from Keyport.




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