Monday, September 14, 2009

Charging for faxed and e-mailed records

Whenever I make an OPRA request, I ask that the responsive records be sent to me by fax or e-mail instead of by regular mail.  I prefer to submit my OPRA requests and receive my records by fax or e-mail because it is much faster (i.e. the Postal Service is not involved in the process.)  Records custodians are required to accommodate a requestor's fax or e-mail preferences.  See Paff v. Sussex Borough, GRC Complaint No. 2008-38.

Most custodians don't even attempt to charge for faxed or e-mailed records. However, some custodians will attempt to charge me for the records in accordance with OPRA's statutory maximums (i.e. up to 75c per page for the first 10 pages, 50c per page for pages 11 through 20 and 25c per page for all pages in excess of 20) even though the pages are being faxed or e-mailed to me.

I know of no case that definitively rules whether or not custodians are allowed to charge the same rate for faxed or e-mailed records as they are for paper records.  But, Government Records Council Executive Director Catherine Starghill has publicly stated that absent unusual circumstances, charges for faxed and e-mailed records are not permitted.

Following is the text of a letter I sent to the Sayreville Borough (Middlesex County) custodian when she attempted to charge me for faxed or e-mailed records. I've also included her response.  I've recently sent similar letters to two other custodians and so far all three have destroyed my check and gave me the records for no cost.

Readers who are facing charges for e-mailed and faxed records might want to try the same or similar tactic.

John Paff
Somerset, New Jersey

Letter to Sayreville 

September 8, 2009

Theresa A. Farbaniec, Clerk
Borough of Sayreville
167 Main St
Sayreville, NJ  08872

Dear Ms. Farbaniec:

In follow up to an e-mail I received today from Jessica from your office, I enclose my $2.25 check for the three pages of records responsive to my OPRA request.   In her e-mail, Jessica stated that your office would honor my request to fax or e-mail the responsive records to me, but only after receipt of my check.

I question the legality of your office charging me for faxed or e-mailed records.  This issue is fresh in my mind because on August 26, 2009, I attended an OPRA seminar conducted by Government Records Council (GRC) Executive Director Catherine Starghill.  During her presentation, Ms. Starghill made it clear that record custodians generally may not charge a requestor for faxed or e-mailed transmissions.

I want the requested records promptly, so I am enclosing my $2.25 check so as to avoid a delay in getting them.  However, I would appreciate it if, prior to depositing my check, you would call the GRC’s information hotline at 866-850-0511 and inquire as to whether Sayreville should be charging for faxing or e-mailing records.  If the answer is in the negative, I ask that you please destroy my check and let me know that you have done so.

Thank you for your attention to this matter.

Sincerely,

John Paff
Sayreville's response

September 14, 2009

We received your letter, dated September 8, 2009, challenging the fee for responding to your OPRA request. We disagree with your position that no copy charges apply to faxed documents because almost all documents have to be photocopied, whether we fax or mail them. Regardless, due to the minimal charge for these documents, we will waive the $2.25 fee in this one instance. We will destroy your current check, but we are not establishing a policy of waiver or agreeing to waive any fees for future requests.

Very truly yours
Theresa A. Farbaniec, RMC
Sayreville Borough Municipal Clerk

Sunday, September 13, 2009

Margate to Require Employees and Officers to use City e-mail accounts

The City of Margate (Atlantic County) will soon require its officers and employees who use e-mail for municipal business to use their "margate-nj.com" e-mail addresses and not their personal e-mail addresses (e.g. Yahoo.com, Gmail.com, Verizon.net, etc.)

The City's policy change was announced in a September 3, 2009 letter sent in response to an August 31, 2009 letter I sent the City in my capacity as Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project.  The correspondence is on-line here.

In my letter I had noted that the City's response to my recent OPRA request showed that a) all of the City's elected officials were sending and receiving e-mails concerning City business using their personal e-mail accounts, and b) the City's existing "E-mail Voice Mail and Internet Usage Policy" did not address the City's responsibility to maintain and archive official e-mails in case a records requestor later sought access to those e-mails.

By requiring City officials to use only their municipal e-mail addresses for official business, the City's e-mail server will preserve those e-mails for future disclosure.  Under the City's previous policy, there was often no straightforward way for a records requestor to gain access to some official e-mails.  For example, if a member of the City Council lost his or her council seat as of January 1, 2009, and a record requestor later asked for official e-mails that the council member sent in November 2008, there would be no easy way for the City records custodian to honor that request if the council member used a Yahoo.com or Gmail.com account to send the requested e-mails.

Friday, September 11, 2009

Media reports on officials' failure to disclose finances

Lately, I've been filing complaints against municipal officials who fail to file the Financial Disclosure Statements required by the Local Government Ethics Law (LGEL).

The newspapers have been picking up on my complaints, and two similar articles--one from yesterday's the Express Times regarding Hackettstown and another from Wednesday's Star Ledger regarding South Amboy--are set forth below.

These articles not only give the non-filing officials some unfavorable publicity, but they also point out that at least part of the reason there is so much noncompliance is because the Local Finance Board (LFB) does not aggressively enforce the LGEL. As I've stated in previous postings, the LFB--to my knowledge--has never fined an official for failure to file. Rather, it gives the non-filing official repeated chances to bring his or her filing up to date and then dismisses my complaint when the filing is eventually received. For an example of such a dismissal, see my blog entry here.

For the past month or so, I've been filing this type of complaint against municipal officials at a rate of about three per week. One example of such a complaint--regarding Gloucester City in Camden County--and my letter to the Gloucester City Mayor and Council is on-line here.

John Paff
Somerset, New Jersey
------------------------
The Express Times
September 10, 2009

28 Hackettstown officials violated ethics law by not filing finance form, according to open records complaint

HACKETTSTOWN | More than two dozen Hackettstown officials -- including two town councilmen and Assemblyman John DiMaio -- neglected to turn in forms that document the sources of their income in 2008 in violation of state ethics laws, according to a complaint filed with the state last week.

The financial disclosure statements are due at the end of every April and are meant to show where various elected and appointed officials may have conflicts of interest by documenting their income, their spouses' income, and their business interests.

Twenty-eight town officials, many of them volunteers on boards or commissions, are more than 16 months overdue, according to John Paff, a Somerset resident who chairs the New Jersey Libertarian Party's Open Government Advocacy Project.

Paff said he filed his complaint against Hackettstown last week and said he has 21 more pending from around the state.

A spokeswoman for the Department of Community Affairs said the finance board "cannot confirm or deny if a complaint has been filed."

Letters explaining the nature of the complaint along with blank disclosure forms were mailed out Tuesday to those listed, said town Clerk and Administrator William Kuster.

DiMaio, R-Warren/Hunterdon -- who was a county freeholder and Hackettstown Municipal Utilities Authority member in 2008 -- couldn't provide an explanation for why he neglected to submit his disclosure form last year.

"It probably got on my desk and between running my business and being a freeholder at the time, I just forgot to fill it out," DiMaio said.

Councilman John Stout also said his failure to file the form was the result of a "simple oversight." Both said they plan to fill out the replacement forms immediately.

Councilman Scott Sheldon, the other councilman on the list, could not be reached for comment.

Paff said Hackettstown was not the worst that he has seen for this kind of violation; at least one town had more than 50 disclosure forms missing, he said.

Part of the problem, Paff said, is that the state-level Local Finance Board -- part of the Department of Community Affairs and the entity with which Paff filed his complaint -- doesn't do enough to make sure the forms are submitted.

Failure to file a disclosure statement could result in a $100 to $500 fine for each official, though he does not expect that to happen.

"I am hopeful the mayor and council will bring these officials in line with the law even if nobody in Trenton is willing to enforce it," Paff wrote in a letter to the town.

Mayor Michael Lavery said in light of the complaint he would like to see the town do more to make sure the documents get filed.

According to current policy, the town sends out forms and instructions to the officials for whom it's required. The forms are due back April 30 each year and the town notifies Trenton who did and did not file.

Lavery, whose financial disclosure statement was not in arrears, said he would like to see the town follow up with officials before the deadline.

"The law is the law. (Disclosure forms) are required to be filed and the people who serve the town should file them," Lavery said.

Reporter Stephen J. Novak can be reached at 610-258-7171, ext. 3542, or by e-mail at snovak@express-times.com.
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Star Ledger

15 S. Amboy officials miss disclosure deadline

Wednesday, September 09, 2009
Aliyah Shahid

Fifteen South Amboy officials, including one police captain and several members of the planning, zoning and redevelopment boards, failed to file their annual financial disclosure statements on time this year, according to an advocate for open government.

Of the 15, eight of the same officials did not file financial disclosure agreements on time in 2008.

In response, the New Jersey Libertarian Party filed a complaint with the Local Finance Board last week.

John Paff, chairman of the Open Government Advocacy Project for the Libertarian Party, also sent the mayor and council a letter urging the administration to make the officials comply.

Consequently, the city sent a letter to those officials who did not file, said South Amboy Clerk Kathy Vigilante. She said since the letter went out, all but five officials have sent their financial disclosure statements.

"I intend to receive them all," said Vigilante, who said many of the officials, who serve on volunteer boards, forget to file. South Amboy Mayor Jack O'Leary said the city would put in a checks-and-balances system to make sure all officials file next year.

"It's unfortunate it happened this way," said O'Leary. "It's something the city will take very seriously going forward."

Under New Jersey state law, all local government officers must file the annual statements on or before April 30 of each year. They must provide any sources of income greater than $2,000, any gifts received, and if an individual or members of the immediate family hold more than 10 percent of profits, assets, and stocks of a business. Twelve local government officers in South Amboy did not meet last year's deadline. Paff said he wanted the officials to file so the public could spot conflicts-of-interest that may arise during an official's term.

For example, he said a non-filing Zoning Board member's spouse could work for a company owned by an applicant seeking the board's approval. Had the official filled out his financial disclosure statement, the public would realize it was a possible conflict for that official to vote on or participate in this application.

"The official is depriving the public of this important knowledge and thus undermining the Legislature's intent," said Paff.

On the Planning Board, Chairman Michael Wilday, in addition to members Ryan Tooker, Richard Cronin, Robert Senape, and Lawrence Stratton did not file disclosure statements on time.

On the Zoning Board, members Michael Gross, Richard Moran, and William Tierney did not file on time, in addition to the board's attorney Francis Womack.

On the South Amboy Redevelopment Board, commissioners Kevin Meszaros and Jeffrey Moskal did not file on time, in addition to Chairperson Melvin Rosado, and Craig Coughlin, who serves as a legal counsel for the board.

"It was an oversite that shouldn't have been made," said Coughlin, who also did not file in 2008. He said his forms from 2008 and 2009 have since been filed. "It was a mistake," he added.

Police Capt. Darren Lavigne and Rosemary Zera, who sits on the Library's Board of Trustees, did not file on time either.

Fines from $100 to $500 could be imposed against non-filers by the Local Finance Board, though Paff said the board rarely fines officials for tardy financial disclosure forms.

A spokesperson for the Local Finance Board said yesterday that no one was available to comment. Paff said he randomly selected municipalities, and several had officials, including in Milltown and Hasbrouck Heights, who did not file financial disclosure forms on time.

"It would be a heck of a lot more efficient if the state fined the late filers," said Paff. "I want them to meaningfully enforce the law."

Aliyah Shahid is a reporter for the New Jersey Local News Service. She may be reached at (908) 243-6233 or ashahid@njlns.com.