Saturday, November 28, 2009

Legislative Committee to consider decreasing copy costs

On Monday, November 30, 2009, 2 p.m., the New Jersey Assembly State Government Committee will hold a hearing on Assembly Bill A1095 which seeks to lower the cost of paper copies to "up to $0.10 per letter size page or smaller, and up to $0.15 per legal size page or larger."  Currently, the Open Public Records Act appears to allow government agencies to charge up to $0.75 per page for the first ten pages; $0.50 per page for the eleventh through twentieth page and $0.25 per page for each page over twenty.

The hearing will be held in Committee Room 13 on the 4th Floor of the State House Annex, Trenton.  A1095, which has an identical bill in the Senate, S1646, is on-line here.

The primary sponsors of the Assembly bill (A1095) are Joe Cryan (D), Upendra Chivicula (D) and Linda Greenstein (D). Co-sponsors are Jack Connors (D), Joan Quigley (D), Joan Voss (D), Ruben Ramos Jr. (D), Samuel Thompson (R), Amy Handlin (R), Valerie Vainieri Huttle (D) and Gordon Johnson (D). The primary sponsors of the Senate bill (S1646) are Loretta Weinberg (D) and Tom Kean Jr. (R).

Tuesday, November 24, 2009

Custodians may tell citizens to "present" OPRA forms during business hours

Prior to the Appellate Division's ruling in Renna v. County of Union, record requestors were required to use an agency's specific OPRA request form.  In the pre-Renna days (and to a lesser extent now), I became concerned when a custodian's request form contained false information or otherwise misled requestors as to their rights under OPRA.

The form used by the High Bridge (Hunterdon County) Board of Education, and other school boards, contained a provision that I felt--and still feel--is misleading. Specifically, the High Bridge Board's form stated: “This form must be completed and presented to the Office of the Board Secretary between the hours of 8 a.m. and 4 p.m., Monday – Friday when offices are normally open.”

I believe that this language could lead some requestors to erroneously believe that their request forms would not be accepted unless they were personally DELIVERED to the Board Secretary during normal business hours.  Some requestors, especially those who work during normal business hours, might be dissuaded from exercising their rights under OPRA if they believed that they were not allowed to mail, fax or otherwise electronically submit their requests. 

I filed a complaint on September 26, 2008 asking the Government Records Council (GRC) to rule that the form's language violated OPRA.  On November 18, 2009, the GRC ruled against me.  It held that the word "present," which is defined in the dictionary as “to offer for observation, examination, or consideration,” is broad enough to include mailed, faxed and other transmittal methods.

A copy of the High Bridge Board's request form and the GRC's decision are on-line here.

Monday, November 16, 2009

Town enacts ordinance requiring public announcement of lawsuit settlements

On February 22, 2010, Andover Township (Sussex County) enacted an ordinance that requires the mayor, at the following Township Committee meeting, to "publicly announce the amount and terms of" any judgment or settlement arising out of a civil lawsuit against the Township or its employees. The proposed ordinance,as originally proposed is on-line here and the ordinance, as finally enacted, is on-line here.

This ordinance is beneficial because settlement agreements, which are often signed years after the lawsuit's initial filing, are not easy to track and often escape the public's and media's attention.  Currently, the only way for a citizen or reporter to find out if a given lawsuit settled is to periodically--perhaps monthly--check with the court or OPRA the settlement agreement. Since most people are not sufficiently motivated to follow up on a given lawsuit's status dozens of times, the settlements are often entered into without the public's knowledge.  And, because of the confidentiality agreements that are often inserted into settlement agreements, the public cannot rely upon the plaintiff in the underlying suit to inform the public of the settlement.

Knowing about settlement agreements helps identify patterns of questionable conduct.  If, for example, citizens become aware that multiple lawsuit settlements have arisen out of the acts or omissions of a particular municipal employee, those citizens can aptly inquire of their elected officials as to why that employee is still on the public payroll. 

I think that readers should provide a copy of Andover's enactment to their own municipal governing bodies and school boards and urge them to adopt something similar.

Saturday, November 14, 2009

Andover Township has drafted an e-mail use policy

On September 13, 2009 I posted concerning the City of Margate's (Atlantic County) policy of requiring 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.).  That posting is on my blog here.

Today, I learned that the Township of Andover (Sussex County) has drafted--but not yet implemented--a more comprehensive policy designed to a) ensure that all official e-mails are preserved on the Township's server and b) prevent e-mail conversations from becoming "meetings" as defined by the Sen. Byron M. Baer Open Public Meetings Act. That draft policy is on-line here

While it's not perfect, Andover's draft policy is the best I've seen so far.  Readers may want to forward it to their own municipalities and school boards and suggest that they adopt something similar.

Monday, November 9, 2009

OPRAing "high speed" audiotapes

Many local governments record the audio of their meetings on tape as opposed to compact disc.  One complaint that frequently arises is that the tapes are recorded at "high speed" and are impossible to listen to on ordinary cassette players.  When requestors ask for versions of the tapes that can actually be listened to, they are typically informed that satisfying their request is technologically impossible or that it is possible only upon payment of a prohibitively expensive "special service charge."

I have learned of a lawsuit filed in Camden County Superior Court that addressed this issue and resulted in a settlement under which the Borough agreed to provide future requestors with tapes at "normal speed."  The case is Susan Scoblink-O'Neill v. Borough of Haddon Heights, Docket No. L-4390-08.  The civil complaint and settlement agreement are on-line here.

The Plaintiff was represented by Donald M. Doherty, Jr. of West Berlin.

GRC issues "Alert" and updates "Model Request Form" and "Custodian Handbook."

On November 9, 2009, the Government Records Council (GRC):

a) Issued an "OPRA Alert" advising records custodians that ordinances are not needed to establish "special service charges" and that such charges need to be determined on a case by case basis.  This "OPRA Alert" is available here.

b) Adopted a new "model form" for OPRA requests.  The new form, which is on-line here, among other changes: a) provides a space for requestors to make requests under the common law right of access in addition to OPRA and b) requires only those requestors who seek "records containing personal information" to certify to their criminal histories.

c) Updated its "Custodian Handbook."  The updated version is on-line here.

Appellate Division: OPRA requires disclosure of "Use of Force" reports

In a November 9, 2009 published opinion, the New Jersey Superior Court, Appellate Division upheld a lower court's ruling that police "use of force" reports, with the names of suspects who were not arrested or charged redacted, are public records subject to disclosure under the Open Public Records Act (OPRA).  The case is Martin O'Shea v. Township of West Milford, Docket No. A-1185-08, and the decision is available on-line here.

The reports at issue are those that the New Jersey Attorney General requires police officers to complete whenever force is used against a citizen.  Examples of force include unholstering a firearm, striking with a police baton or applying a chemical spray.  The Attorney General's rule and regulations regarding use of force are on-line here.

Examples of actual Use of Force Reports, from the Cranbury Township (Middlesex County) Police Department are on-line here.

Mr. O'Shea was represented by Richard Gutman of Montclair.  The American Civil Liberties Union and North Jersey Media Group were amici curiae and were represented by Bobby Conner, Edward L. Barocas, Jeanne LoCicero and Jennifer A. Borg.

Friday, November 6, 2009

GRC: Unrelated requests can be on same OPRA form

On November 6, 2009, the Government Records Council (GRC) released its decision in Anonymous v. Long Hill Board of Education (GRC Complaint No. 2008-192). The issue presented was whether the custodian could lawfully require the requestor to submit separate Open Public Records Act (OPRA) request forms for each item requested rather than including multiple requests on a single form.

The GRC held that although there may be some circumstances in which a custodian may require a requestor to submit separate OPRA request forms, such as if the request is extremely voluminous, the requestor in this case sought access to only four records: a meeting agenda; two sets of meeting minutes; and a pupil enrollment report.  Since this was not a voluminous request, the GRC held that the school board's custodian, John Esposito, violated OPRA by requiring the requestor to complete separate request forms for each item requested.  Indeed, the GRC held that the custodian's "practice provides a road block for a requestor to gain access to government records."

The GRC's decision is on-line here.

While the GRC declined to find that the custodian "knowingly and willfully" violated OPRA, it did find that Anonymous was a "prevailing party" under OPRA and ordered the Board of Education to pay Anonymous' lawyer--Walter Luers of Oxford--his attorney fees. 

Wednesday, November 4, 2009

Court rules on OPRA and OPMA case

On October 28, 2009, Camden County Superior Court Judge Louis R. Meloni issued a written opinion in the case of Cassel v. Township of Haddon et al, Docket No. CAM-L-1426-09.  The opinion is on-line here.

The ruling held:

a) It violates the Sen. Byron M. Baer Open Public Meetings Act for a public body to announce a public meeting at 7 p.m. but to actually start it at 6:20 p.m.  But, the violation does not require issuance of an injunction.

b) The municipality's ordinance allowing a $5 charge for a compact disc doesn't trump OPRA's limitation to "actual cost."  Thus, 88c--which was determined to be the "actual cost" is the proper amount for a CD.

c) The municipal lawyer's explanation that he didn't meet with a quorum of municipal council members during private, unadvertised meetings was credible despite the fact that the attorney's billing records showed that such meetings did occur.  Accordingly, the Meetings Act was not violated.