Thursday, December 23, 2010

Paff v. South Bound Brook: Video of Court hearing on-line

Readers may recall that a motion for summary judgment in my open public records lawsuit against South Bound Brook Borough was heard on Friday, December 17, 2010, at 9 a.m. before Judge Ciccone at the Somerset County Courthouse in Somerville.

The video of the ten-minute hearing is on-line here. I was represented by Walter Luers, Esq. of Oxford and the Borough's lawyer was Francesco Taddeo of Somerville.

By way of background, my suit seeks disclosure of records of a police investigation involving the "Mayor's wife's family." More background information is available here and all the case documents, up to and including Judge Ciccone's December 17, 2010 Order are on-line here.

At the December 17, 2010 hearing, Judge Ciccone ordered South Bound Brook to provide her, under seal, with all of the suppressed records so that she can privately review them and determine which, if any, should be disclosed to me. (This is called an "in camera" review.)

Christie: Proposed OPRA exemption rules have force of law

In 2008, the Government Records Council (GRC) ruled that OPRA exemptions proposed by state agencies as far back as 2002--but never enacted--indefinitely constituted a lawful basis for denying OPRA requests. On June 4, 2010, the Appellate Division reversed the GRC's decision and set a November 5, 2010 deadline for agencies to enact rules exempting certain classes of records from public disclosure under OPRA. My The June 5, 2010 blog posting regarding the ruling is on-line here.

Since the Appellate Division's ruling, five state departments--Law and Public Safety, Corrections, Military and Veterans Affairs, Environmental Protection, and Community Affairs--have proposed new rules exempting certain records from OPRA. In early November, Governor Chris Christie issued Executive Order 2010-47 which gave the force of law to the exemptions set forth in the proposed regulations. Christie determined that the proposed rules "cannot be finalized prior to the deadline of November 5, 2010 established by the court [and that] it is in the public interest that these exemptions do not lose their force and effect during the pendency of the rulemaking process."

Executive Order 2010-47, along with the five agencies' proposed rules, is on-line here.

Thursday, December 2, 2010

Public Comment Portion at Reorganization Meetings

Every January, most municipalities hold their "reorganization meetings." Today, I looked at the minutes of several municipal governing bodies to learn whether or not they set aside a portion of their 2010 reorganization meetings for citizen comments. Interestingly, I found that a significant minority (approximately 20%) of the small sample of bodies I checked did NOT have a public portion set aside even though one is required by law.

I urge readers to see if their municipal governing bodies set aside a portion of their 2010 Reorganization Meeting for citizen comment. Most municipalities have Internet sites and list them here. And, many of those that have Internet sites post their agendas and minutes on-line.

If you find that your governing body did not provide a public comment period at its 2010 reorganization meeting, you should contact the municipal clerk to make sure that the public will be allowed to comment at the 2011 reorganization meeting. Following is my e-mail to the Clerk of Readington Township (Hunterdon County) which cites the applicable law and may otherwise be helpful.

December 2, 2010

Vita Mekovetz, Clerk
Readington Township
509 Route 23
Whitehouse Station, NJ 08889

Dear Ms. Mekovetz:

In our telephone conversation today, December 2, 2010, I noted that the agenda and minutes of the Township Council's January 4, 2010 Reorganization Meeting indicate that no portion of that meeting was set aside for public comment. (The agenda and minutes, respectively, are on-line at http://www.readingtontwp.org/TC-agendas/2010/TC_agenda_01-04-10.pdf and http://www.readingtontwp.org/TC-agendas/2010/TC_minutes_01-04-10.pdf .)

During our conversation, you confirmed that the 2010 Reorganization Meeting did not have a portion set aside for public comment but assured me that such a portion will be set aside for the 2011 Reorganization Meeting.

As we discussed, N.J.S.A. 10:4-12 requires that "a municipal governing body . . . shall be required to set aside a portion of EVERY meeting . . ., the length of the portion to be determined by the municipal governing body . . . for public comment on any governmental . . . issue that a member of the public feels may be of concern to the residents of the municipality . . ." (I have emphasized the word "every.") In sum, the public is allowed to speak at every Township Council meeting, regardless of whether it is labeled a "regular," "special," "workshop," "reorganization" or other type of meeting.

As I'm sure you're aware, a municipality's reorganization meeting is often well attended by the public and sometimes has senators, assembly representatives and other high-ranking public officials in attendance. Given these often large and influential audiences, we believe that is especially important for the public to be heard.

Thank you very much for your cooperation in this matter.

Sincerely,

John Paff, Chair
New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, New Jersey 08875-5424

Saturday, November 27, 2010

Gloucester Twp meeting minutes "cannot be located."

On November 16, 2010, I requested minutes from five Gloucester Township(Camden County) Council closed (i.e. executive) sessions from as recently as April 7, 2008. On November 24, 2010, I was informed by Clerk Rosemary DiJosie that the requested minutes "were not and cannot be furnished to anyone as they cannot be located."

According to State record retention schedules, meeting minutes are required to be retained permanently. Accordingly, the Township is in violation of the State's requirements.

According to DiJosie's letter, I was "previously informed by letter dated July 10, 2008 from Gloucester Township Solicitor David Carlamere [that] measures have been put in place to better preserve Closed Session minutes." While this is technically true, that letter was in response to my June 30, 2008 complaint to the Mayor and Council that the Council's closed meeting minutes lacked specificity. I was not aware until very recently that the Clerk's office simply "cannot locate" minutes at all.

DiJosie's November 24, 2010 letter, Carlamere's July 10, 2008 letter and my June 30, 2008 complaint are on-line here.

Wednesday, November 24, 2010

Court to hear South Bound Brook public records suit

On July 27, 2010, I informed readers of my lawsuit against the Borough of South Bound Brook (Somerset County) seeking disclosure of records of a police investigation involving the "Mayor's wife's family." Background on the matter and a copy of the lawsuit are on my blog here.

My attorney, Walter Luers of Oxford, has recently filed a motion for summary judgment. For those who are not familiar, summary judgment motions are filed whenever a party believes that there are no significant facts in dispute and all that is required is for the court to apply the law to the case. Our motion, along with a legal brief, certification and exhibits is on-line here.

There should be a hearing on our summary judgment motion at 9 a.m. on Friday, December 17th before Hon. Yolanda Ciccone, A.J.S.C. at the courthouse at 20 N. Bridge St, Somerville. The public is invited to attend the hearing, but should call 908-231-7068 the day before to ensure that it has not been postponed. Refer to Paff v. Borough of South Bound Brook, Docket No. SOM-L-1212-10.

Tuesday, November 23, 2010

OPRA lawsuit to determine amount of cash seized by police

On September 8, 2010, I read a newspaper article informing me that a drug arrest was made after a motor vehicle stop in Readington Township (Hunterdon County) on September 2, 2010 and that a "large amount of U.S. Currency" was seized from the arrestee's vehicle. This prompted me to file a records request to determine exactly how much currency was seized.

(Note: I became interested in cash seizures in Readington after learning that the Readington Police, along with the Hunterdon County Prosecutor's Office and the State Attorney General Office, split $100,000 seized from a vehicle despite a later finding that the search that resulted in the seizure was unconstitutional. For more information, click here.)

Readington, however, refused to provide me with any records disclosing the exact amount of currency seized. The Township claimed that disclosing the amount might compromise a criminal investigation.

With Richard Gutman of Montclair as my attorney, I filed suit against the Township on October 12, 2010. The suit is on-line here.

The matter is scheduled to be heard on Tuesday, January 18, 2011, 9 a.m. before Hon. Yolanda Ciccone, A.J.S.C. at the courthouse at 20 N. Bridge St, Somerville. The public is invited to attend the hearing, but should call 908-231-7068 the day before to ensure that it has not been postponed. Refer to Paff v. Township of Readington, Docket No. HNT-L-673-10.

Sunday, November 21, 2010

DEP proposes new OPRA rules

The New Jersey Department of Environmental Protection (DEP) has proposed new rules exempting certain categories of records from public disclosure. Those proposed rules are on-line here.

OPRA attorney Richard M. Gutman of Montclair has submitted written comments to the proposed rules which are on-line here.

Any citizen who wishes may, prior to February 4, 2011, submit comments regarding the proposed rules. Citizen comments and the DEP's responses will be published in the New Jersey Register.

Comments may be mailed to:

Alice A. Previte, Esq.
Attention: DEP Docket Number 11-10-11
Office of Legal Affairs
P.O. Box 402
Trenton, N.J. 08625-0402

Or, comments may be faxed to 609-984-3488.

Saturday, November 13, 2010

Court awards attorney fees on common law right of access claim

Update: The holding in the following case has been reversed.  Click here for more information.

On November 10, 2010, in what appears to be the first case of its kind, Union County Superior Court Judge Kathryn A. Brock ruled that a record requestor who obtained records under the common law right of access, but not under the Open Public Records Act (OPRA), is entitled to his or her attorney fees.

The case is John Paff v. Borough of Garwood, Docket No. UNN-L-1089-10. At issue was a request for a police surveillance video that depicted Garwood Police Officer Gennaro Mirabella, while in uniform, trespassing in the Garwood Borough offices. In a July 13, 2010 opinion, Judge Brock found that Paff was not entitled to the video under OPRA but was entitled to it under the common law right of access. For background and case documents, click here.

After entry of the July 13, 2010 order, Paff's attorney, Richard M. Gutman of Montclair, filed an application for costs and attorney fees. He asserted that the New Jersey Supreme Court, in Mason v. Hoboken, 196 N.J. 51 (2008), created a new right to attorney fees in common law access cases. Brock agreed and awarded Gutman $40,288.50 in attorney fees and a "fee enhancement" of $14,100.98. She also awarded the cost of a $1,381.40 transcript and $260 in court filing fees for a total of $56,030.88. Garwood was represented in the case by Robert F. Renaud of Cranford.

Brock found that although "there simply have not been any published decisions since the Court's decision in [Mason v. Hoboken] where the plaintiff filed claims for access under OPRA and the common law, but only prevailed on the common law claim . . . the authority to make the award is clear under [Mason] and under the catalyst theory this plaintiff is entitled to a reasonable counsel fee as the prevailing party on his common law claim under the facts of this case."

Judge Brock found that $350 per hour was a reasonable fee for Mr. Gutman's services but reduced Gutman's request to be paid for 141.88 hours to 115.11 hours.

Judge Brock also ruled that Gutman was entitled to an extra 35% because of the risk he took in not getting paid at all if the suit was unsuccessful. Brock agreed with Gutman that his chance of losing the suit was high, given that Garwood refused to provide him and Paff with "more specific information about the basis for the OPRA exemptions being relied upon" and because Garwood had raised a security concern by falsely claiming that the Borough's safe was shown on the video. On the latter point, she found that "if the court had not viewed the DVD and concluded that [Garwood's claimed] security exemption did not apply . . . the plaintiff's claim under the common law right of access might well have been lost . . ."

Gutman's fee application and the Borough's opposition are on-line here. Judge Brock's order and thirty-seven page decision is on-line here.

Bergen judge issues OPRA/OPMA ruling

Update: December 8, 2010:

In an order and written decision dated December 7, 2010, Bergen County Superior Court Judge Joseph S. Conte agreed to reconsider his November 4, 2010 ruling that the Borough of Woodcliff Lake violated OPRA by failing to respond to a request within seven business days.

Judge Conte found that the Borough did not previously provide the court with its clerk's February 4, 2010 e-mail informing the requestor "that she is compiling the documents" and that she "just wanted to make sure" that she had gathered all the responsive records before formally responding to the request.

Judge Conte ruled that the newly discovered February 4, 2010 e-mail, which was sent within seven business days of the request, "could be reasonably interpreted as" the Borough's request for additional time to respond. He noted, however, that "even though the response was in writing, it did not comply with the proper format: it did not grant or deny access, or specifically request additional time." He cautioned the Borough, in the future, to ensure that OPRA requests "should specifically state that a reasonable extension of time is being sought" and, when possible, should provide a certain date when the requested records will be available.

It is important to note that Judge Conte did not rule that the February 4, 2010 e-mail did satisfy OPRA's timeliness requirement. His ruling was only that summary judgment should not have been granted to the requestor on this point since there was a genuine issue of fact as to whether or not the seven-business day time period was met. Accordingly, the question will be decided at trial.

Judge Conte scheduled the trial to be held on December 15, 2010. The trial will not only decide the timeliness question, but will also decide counts three, five and seven of the requestor's complaint. The public may attend and observe the trial, which will be held at 10 Main Street, Hackensack. Those who wish to attend should call the court at 201-527-2475 the day before the trial to determine the hour it will begin and confirm that it hasn't been adjourned. Refer to O'Brien v. Woodcliff Lake, Docket No. BER-L-2091-10.

The complaint, Judge Conte's orders and decisions of May 6, 2010 and November 4, 2010 on as well as the reconsideration order and decision are on-line here.

On November 4, 2010, Bergen County Superior Court Judge Joseph S. Conte issued an unpublished decision in O'Brien v. Woodcliff Lake, et al, Docket No. BER-L-2091-10. Conte's two-page court order and thirteen-page written decision are on-line here.

The decision covers several topics, some of which are set forth here:

1. Woodcliff Lake, by failing to respond to a request for a council member's e-mails within seven business days, violated the Open Public Records Act (OPRA).

2. An in camera inspection would be done on an investigative report
to determine the merit of Woodcliff Lake's claim that the report is exempt from disclosure. (An "in camera inspection" is when the judge examines a record in private.)

3. The Woodcliff Lake Borough Council violated the Open Public Meetings Act (OPMA) by informing the public, before going into closed session, only that it would discuss matters involving "attorney/client privilege, property acquisition."

Activists in Bergen County may find some of Judge Conte's rulings helpful. For example, if a resident of another Bergen County municipality finds that its council or school board similarly describes closed session discussion topics vaguely (e.g. "attorney/client privilege, property acquisition"), he or she should send it a copy of Judge Conte's decision and request compliance. The ruling--and the likelihood that the body would lose if suit was brought--might convince the erring body to modify its OPMA procedure without need for litigation.

Also, the plaintiff in this matter, Kevin O'Brien, is not an attorney and filed this action pro se. His success will hopefully encourage other open government activists to consider filing similar suits, when necessary, in their own localities.

LPS proposes new OPRA rules

The New Jersey Department of Law and Public Safety has proposed new rules exempting certain categories of records from public disclosure. Those proposed rules are on-line here.

OPRA attorney Richard M. Gutman of Montclair has submitted written comments to the proposed rules which are on-line here.

Any citizen who wishes may, prior to December 31, 2010, submit comments regarding the proposed rules. Citizen comments and the LPS's responses will be published in the New Jersey Register.

Comments may be mailed to:

Philip H. Hopkins, Jr., Deputy Attorney General
Administrative Practice Officer
Department of Law and Public Safety
Office of the Attorney General
P. O. Box 081
Trenton, NJ 08625-0081

Comment letters should refer to "Proposal Number: PRN 2010-269."

DCA proposes new OPRA rules

The New Jersey Department of Community Affairs (DCA) has proposed new rules governing how it responds to records requests and exempting certain categories of records from public disclosure. Those proposed rules are on-line here.

OPRA attorney Richard M. Gutman of Montclair has submitted written comments to the proposed rules, and the text of those comments is on-line here.

Any citizen who wishes may, prior to December 31, 2010, submit comments regarding the proposed rules. Citizen comments and the DCA's responses will be published in the New Jersey Register.

Comments may be mailed or faxed to:

Michael L. Ticktin, Esq.
Chief, Legislative Analysis
Department of Community Affairs
PO Box 802
Trenton, NJ 08625
Fax No. (609) 633-6729.

Comment letters should refer to "Proposal Number: PRN 2010-266."

Monday, November 1, 2010

Records suit filed against the City of Brigantine

On August 3, 2010, I sent an open letter to Brigantine Mayor Philip J. Guenther and the City Council seeking access to a settlement agreement that a member of the city's police administration reached with the City and an employee who accused him of sexual harassment. My letter is on-line here.

Since the City did not respond to my letter, I filed suit against Brigantine on September 14, 2010. The suit seeks access to the settlement agreement under three legal theories: a) the Open Public records Act (OPRA), b) the common law right of access, and c) the Local Fiscal Affairs Law. I am being represented by Richard Gutman, Esq. of Montclair.

My suit seeks the settlement agreement with the name of the alleged sexual harassment victim redacted from it. I have no interest in knowing or publicizing the name of the alleged victim. I am, however, interested in publicizing the name of the alleged harasser and the terms of the settlement agreement.

Documents from the lawsuit, which is captioned Paff v. City of Brigantine, Docket No. ATL-L-5038-10, are available on-line here and updates on this suit are on-line here.

The matter is scheduled to be heard on November 18, 2010 at 11:30 a.m. by the Hon. Nelson C. Johnson in Atlantic City. Due to a scheduling conflict, however, the matter is almost certainly going to be postponed until December 14, 2010 or December 16, 2010. I will notify readers when a new date and hour is set.

Tuesday, October 5, 2010

Hightstown employs an open and transparent process

I would like to commend the Borough of Hightstown (Mercer County) on the transparent manner in which it recently filled a vacant seat on its municipal council.

One member of the Borough Council, a Republican, resigned. According to the Municipal Vacancy Law, N.J.S.A. 40A:16-1, et seq., the local Republican Committee submitted the names of three nominees to the Borough Council. The Council was then obliged to select one of those nominees to serve the remainder of the vacated term.

I have witnessed vacancies being filled by other public bodies, and the process is usually shrouded in secrecy. Typically, the nominees are interviewed during an executive session and the public is only allowed to witness a formal vote installing the successful nominee. (The leading case on the process of filling vacancies is enunciated in Gannett Satellite Information Network, Inc. vs. Board of Education of Manville, 201 N.J. Super. 65 (Law Div. 1984), which is on-line here.

Hightstown, however, did it right.

First, after the Republican Committee submitted the names of the three nominees, their resumes were posted on the Borough’s website prior to the September 28, 2010 meeting at which the selection was made. Then, the entire selection process, including detailed interviews of the three candidates and the Council's deliberations, was held in public allowing citizens to witness the formulation and decision making process from start to finish.

The agenda of the September 28, 2010 meeting, the resolution to fill the vacancy and the three nominees' resumes are on-line here.

I commend Hightstown's mayor and council for the manner in which they handled this process. Readers should insist that their municipalities and school boards follow Hightstown's example the next time a vacancy needs to be filled.

Saturday, October 2, 2010

Loss in Paff v. Chatham Borough

Morris County Assignment Judge B. Theodore Bozonelis ruled today that under the common law right of access the government's and police officer's privacy interests trumped the public's right to know the length of a suspension meted out against a police officer who left a loaded gun on a public sidewalk while intoxicated. Bozonelis also decided, despite his ruling, to take a private look at (i.e. conduct an in camera review of) the officer's suspension records.

The case is captioned Paff v. Borough of Chatham, Docket No. MRS-L-1860-10. I am represented by Richard Gutman, Esq. of Montclair and the case documents are on-line here.

The Daily Record printed an article on the hearing, which is reposted below:

Judge: Public has no right to know suspension Chatham, N.J., cop got for losing gun

By PEGGY WRIGHT • STAFF WRITER • October 2, 2010

A judge ruled Friday that the public is not entitled to know the length of a suspension that Chatham Borough officials gave a police officer who left a backpack containing a loaded gun on a Westfield sidewalk.

Superior Court Assignment Judge B. Theodore Bozonelis ruled against a lawsuit filed by Somerset resident and public records watchdog John Paff to compel the borough to disclose the length of a suspension given to Officer Roy George.

However, the judge, sitting in Morristown, said he would conduct a private, in-camera review of documents relating to the suspension and decide whether his ruling has full merit.

Paff, who was represented by attorney Richard Gutman, said he believes the entire disciplinary process, particularly when police are involved, should be open.

"In order to evaluate the honesty and genuineness of public officials, we have to be able to peek behind the curtain of what the wizard is doing," Paff said.

After a closed-door disciplinary hearing was conducted, the borough did disclose in April that George was demoted from sergeant to patrolman. This portion was revealed because Chatham has an ordinance that requires demotions to be passed by public resolutions.

The police chief said a suspension also was ordered. But the length and loss of pay it would cost Roy was never disclosed and Paff filed suit to find out.

George was off duty on Oct. 12, 2009, when he was found to be intoxicated and wandering a street in Westfield. The next day, Westfield police got a call from a resident who found a backpack with a loaded, .45-caliber handgun and credentials inside that belonged to George.

The judge had to weigh the public's interest in the suspension and the officer's right to privacy and found the privacy interest was more compelling. Bozonelis noted there is "progressive discipline" in New Jersey, meaning punishment increases for police officers based on department infractions, and the public could be made privy to more of Roy's past personnel record than envisioned if the gun-related suspension was released.

"There are other considerations which impact on the length of a suspension. It could be his prior record," the judge said. However, there are no indications that George has a prior disciplinary history in Chatham.

Borough labor counsel James Plosia Jr. argued that George's privacy interest outweighed the right-to-know, and that he signaled a desire for privacy by requesting that his disciplinary hearing be closed.

"George's right is not in any way diminished by what the borough did" in passing the demotion resolution, Plosia said.

Peggy Wright: 973-267-1142; pwright@gannett.com.

Thursday, September 30, 2010

OPRA case in Morristown tomorrow, Friday, October 1st

On October 1, 2010 at 9 a.m., Morris County Assignment Judge B. Theodore Bozonelis will hear argument in Paff v. Borough of Chatham, Docket No. MRS-L-1860-10. I am represented by Richard Gutman, Esq. of Montclair and the case documents are on-line here.

At issue is Chatham's denial of my request for records that would reveal the length of a former Borough police sergeant's suspension. As background, the newspapers reported that the sergeant, Roy George, allegedly left a backpack containing a loaded handgun on a Westfield sidewalk after a night of drinking. Even though Chatham disclosed the fact that George had been demoted and suspended and the reasons for the demotion and suspension, the Borough refused to grant access to records disclosing the length of George's suspension.

The public and media are invited to attend the hearing which will be held at the courthouse on Washington and Court Streets, Morristown. (I'm sorry for the late notice but it appeared until late today that the matter would be adjourned.)

Bergen court rules on OPRA and DARM's record retention schedules

On September 14, 2010, Bergen County Assignment Judge Peter E. Doyne issued a written opinion in North Jersey Media Group v. Bergen County Economic Development Corporation, Docket No. BER-L-6593-10. That opinion is available for download here.

The opinion, while "unpublished" (i.e. it creates no binding precedent), is very instructive, especially on the question of whether a public agency is legally required to establish a system to properly preserve e-mail records.

Judge Doyne ruled that the Destruction of Public Records Law doesn't create a private cause of action (i.e. a citizen cannot seek a civil penalty against a government agency or official who loses or destroys a record). But, he also ruled that since the defendant agency "has no guidelines for the retention of records" it shall "implement a policy to maintain and preserve records required by statutes and regulations."

Based on Judge Doyne's ruling, I believe that it is at least arguable that public agencies are under a ministerial duty to design a system that collects and archives official e-mails. Thus, if a citizen knows that municipal council members are sending and receiving official e-mails from their Yahoo, AOL, or GMail accounts and that there is no municipal policy requiring those e-mails to be preserved on the municipal server, I believe that citizen may be able to successfully bring an action in lieu of prerogative writs to compel the municipality to implement to establish such a policy. (For information on compelling a government agency or official to complete a ministerial task, see my blog entry "My town won't obey the law. What do I do?")

Friday, September 24, 2010

Neptune Twp Housing Authority fails to comply with "sunshine" laws

On September 24, 2010, I wrote to the Neptune Township Housing Authority complaining that the Authority's Board of Commissioners is not in compliance with the Open Public Records Act (OPRA) and the Senator Byron M. Baer Open Public Meetings Act (OPMA). Among the issues complained of: a) the Authority charging an excessive amount for copies of public records, b) the Authority's failure to respond to a request for executive session minutes and c) the Authority's failure to adequately inform the public of the topics that will discussed during non-public (i.e., "executive" or "closed") session. My letter and attachments are on-line here.

Some of the exhibits to my letter are legal services invoices submitted to the Authority by Bart J. Cook, Esq. of Asbury Park. Unlike many attorneys who charge their governmental clients for only the services performed, Mr. Cook bills the authority an $1,125 monthly "retainer" in addition to $150 per hour for legal work performed.

Thursday, September 23, 2010

How do I request records when I don't know what records exist?

Sometimes I get questions from readers that I think may be of general interest. Here is one such question and my response to it.

Question:


The county in which I reside owns and operates a miniature golf course. The Freeholder Director claims that the course is making money and doing well, but I'm not so sure. When I attempted to OPRA the golf course's income and expense records from the County, I am told that the records I seek do not exist, that the county is under no responsibility to create records for me or that my request is too broad. Since I don't know the records that the county keeps and how it arranges them, it is difficult if not impossible for me to request them. What do I do?

Answer:

Unfortunately, some government agencies take advantage of requestors by forcing them to play a game of blind man's bluff. It's a frustrating problem.

I've had some success with the form of request that is set forth below. As you can see, it contains a preemptive "background" element explaining: a) the requestor's goal in making the request, b) that the requestor doesn't (and shouldn't be expected to) know exactly which records would help him or her reach that goal, and c) reminding the agency that OPRA intends for records custodians and requestors to cooperate with one another.

The receiving agency, or its attorney, usually realize that anything less than a full and cooperative response to such a candid request will likely be viewed by a Superior Court judge or the Government Records Council as being evasive and mean-spirited.

John Paff, Chair
New Jersey Libertarian Party's
Open Government Advocacy Project

Background:

The Freeholder Director recently said that the the county's miniature golf course is doing well and making money. I would like to test the veracity of that claim by examining the records of the golf course's income and expenses. I don't know which records the county keeps, so it's difficult for me--an ordinary citizen with no training in governmental accounting--to frame this request. Therefore, I am requesting the following, specific records. If the requested records are not available or are difficult for you to produce, I ask that you recommend which records I should request so that I can accomplish my goal of verifying the income and expenses related to the golf course in a manner that is least expensive and cumbersome for both me and the county. I remind you that the New Jersey Supreme Court has stated that the Open Public Records Act (OPRA) "is designed both to promote prompt access to government records and to encourage requestors and agencies to work together toward that end by accommodating one another." Mason v. City of Hoboken, 196 N.J. 51, 78 (2008).

Records requested:

I request these records pursuant to both OPRA and the common law right of access.

For the period beginning July 1, 2009 and ending June 30, 2010:

1. Statements or other writings that show the amount of income received that is attributable to the golf course.

2. Purchase orders evidencing any moneys, except salaries and insurance, disbursed on account of the golf course.

3. Any record that discloses the amount of insurance premium attributable to the golf course.

4. Wage and salary records for any employees whose work is exclusively for the golf course.

5. Wage and salary records for any employees whose work is partially for the golf course.

Tuesday, September 14, 2010

My town won't obey the law. What do I do?

Sometimes I get questions that I think might be of general interest. Here's one such question and my answer to it.

QUESTION:

My municipal government does not obey the law and does not care that it does not obey the law. For example, state law, specifically N.J.S.A. 40A:9-139, requires each municipality to pass an ordinance providing for the appointment of a municipal attorney. Despite this law, my town doesn't have such an ordinance and refuses to enact one. My complaints to the Attorney General, County Prosecutor and various state agencies haven't helped and I don't have money to hire an attorney. What can I do?

ANSWER:

You could consider filing a lawsuit pro se, i.e. without a lawyer. That's what Frank Bright, an activist in New Brunswick, did in 2003 when the Mayor refused to appoint citizens to certain boards and committees even though he was directed to do so by a municipal ordinance. Bright won his lawsuit and his victory was reported in the media (See, e.g. "City told to put people on nonexistent panels," by Sharon Waters, Home News and Tribune, February 27, 2004).

If the law compels a public official or agency to perform a ministerial act (i.e. an act that the official or agency doesn't have the discretion not to perform), the court can order the agency or official to perform the act. And, the way one goes about applying to the court for such an order is to file a suit "In Lieu of Prerogative Writ of Mandamus."

In Bright's case, the Court ruled that although the Mayor had discretion to choose who would serve on the various boards and committees, he was required by law to appoint somebody. In your case, it appears that you could similarly sue your governing body and the court should require them to enact the required ordinance.

Several years ago, I obtained a copy of Bright's lawsuit paperwork from the courts, and have now posted those records on-line here in order to show exactly how Bright worded his suit, how New Brunswick responded, how Bright replied to the City's response and how the Court ruled. Readers will note that the the judge originally decided to not make New Brunswick reimburse Bright for his court costs but later changed his mind. So, in the end, Bright succeeded in making the City of New Brunswick follow the law and got all his court costs paid by the City.

I feel compelled to include some sort of disclaimer admonishing readers that filing a lawsuit is serious business and that they should contact an attorney, etc. While that is true, I also believe that there are times when citizens who can't afford a lawyer to correct official neglect or wrongdoing need to stand up for their rights. So, do your research and file a pro se suit only if you believe it's lawful and justified.

Wednesday, September 8, 2010

Pittsgrove school board quizzed on its executive session minutes

On September 9, 2010, I wrote to the Pittsgrove Township Board of Education asking if would take more robust and comprehensible minutes of its nonpublic (closed or executive) meeting. My complaint is that the Board, which sometime meets in private for hours, often boils the substance of those meetings down to two or three vague sentences in the meeting minutes. This deprives the public, as well as present and future Board members, from understanding what was said and done during these private meetings.

My letter to the Board is on-line here and resolutions and minutes from three recent Board executive meetings are on-line here.

Readers interested in this issue are urged to attend the Board September 16, 2010 meeting and ask the Board to publicly comment on my September 9, 2010 letter.

Friday, August 20, 2010

Video: Garwood Police Officer Trespassing

The video that I had to sue the Borough of Garwood (Union County) to get is now on YouTube here.

It shows former Garwood Police Officer Gennaro Mirabella walking through the Garwood Borough offices, after hours, looking in boxes, etc. I cannot understand why Garwood fought so hard (and spent so many taxpayer dollars) to suppress this innocuous video.

Background on the lawsuit that I filed to obtain this video is on-line here and the links contained within that blog post.

Background on the Internal Affairs complaint that I filed against Garwood Police Chief William Legg for misleading the court with a false statement in a certification is on-line here.

Friday, August 13, 2010

Several OPMA issues with the Bridgeton Board of Education

I attended a meeting of the Bridgeton Board of Education (Cumberland County) on August 10, 2010 to address two concerns: a) executive session minutes that are not "reasonably comprehensible" and b) meeting agendas not being given to the public until the beginning of the meeting.

I arrived for the 6 p.m. meeting at 5:45 p.m. and found the building to be locked. I rang the bell and knocked on the door and in a few minutes a man came and pushed a latch to let me in, but he didn't unlock the doors for any other members of the public who might later arrive. This gave me an initial indication that openness and transparency were not among the Board's strong suits.

When I walked into the meeting room, I encountered the smell of food. I looked to my left and saw several people sitting in an adjoining room eating and conversing. I took a seat in the public area and waited. While waiting, someone from inside the adjoining room closed the door. After a few minutes, the Board members and some administrators emerged from the adjoining room and took their places on the dais. Since it was about six o'clock, someone unlocked the exterior door to allow other members of the public to enter.

The meeting was then formally called to order. At that time, the president asked for a short delay while one of the staff members duplicated the meeting agenda for the four members of the public (including me) who were present. We were each given copies of the meeting agenda and were invited to sign a list if we wished to address the Board. I signed up as did one other citizen.

I was called first to speak and I distributed some exhibits to the Board members. Among the exhibits was the Board's July 14, 2009 Executive Session minutes (see here) which is typical of the Board's executive session minutes. I noted that the Board summed up a private meeting that lasted nearly one and a half hours with the following sentence that appeared in the minutes: "The Board discussed matters of personnel." I opined that this single, general sentence did not meet the Open Public Meetings Act requirement that meeting minutes be "reasonably comprehensible." (See N.J.S.A. 10:4-14).

I next noted that the 30-page agenda that I had just been given ought to have been provided to the public at least a day or two prior to the meeting. I explained that it is difficult, if not impossible, for members of the public to present cogent comments and questions to the Board regarding agenda items when they don't have access to the agenda until literally seconds before the public comment period begins.

While I was speaking, I observed that the Board members didn't look at me or appear to be paying any attention to what I was saying.

I finally raised the issue of the Board's pre-meeting in the adjoining room and expressed my opinion that this gathering was disallowed by the Open Public Meetings Act. I then thanked the Board for their attention and asked them if they had any questions or responses. None of the Board members looked at me or paid any attention to me. So, after waiting at the podium for a few seconds, I returned to my seat.

The next speaker was called, and she stated that she was an employee who received a letter that she did not understand. One of the administrators told her it was Rice Notice. She then asked why her union representative wasn't present and the Board Attorney, A. Paul Kienzle, Jr., brusquely told her that her union representative's presence or absence wasn't the Board's concern. Board President Edwards asked her "Is that all?" and the woman shrugged and returned to her seat. The Board then moved to go into executive session and told the four members of the public to leave the room.

The following day, I filed a complaint against the Board, concerning the pre-meeting meals, with the Cumberland County Prosecutor and the New Jersey Department of Education. That complaint is on-line here.

I have rarely witnessed more cavalier and imperious public officials than the members of the Bridgeton Board of Education. I look forward to working with them to improve their compliance with both the letter and the spirit of the Open Public Meetings Act.

Bloomfield turns over e-mail, pays almost $5,000 in attorney fees

On June 11, 2010, Montclair Attorney Richard Gutman filed suit on my behalf against Bloomfield Township (Essex County) to force disclosure of an e-mail sent by the Essex County Prosecutor's Office to a Bloomfield Councilwoman. (Paff v. Bloomfield, Docket No. ESX-L-4384-10). Background on the suit, as well as the lawsuit documents, can be found here.

On August 10, 2010, the Township of Bloomfield (Essex County) decided to give me the e-mail that I sued to obtain. And, Bloomfield agreed to pay $4,913 for my costs of suit and Mr. Gutman's attorney fees. A copy of the e-mail that was provided is on-line here.

I believe that Bloomfield taxpayers have good reason to ask their elected officials why nearly $5,000 was paid in order to suppress a record that even the Township concedes is not exempt from disclosure.

An article on the disclosure and the payment of attorney fees follows.

John Paff
Somerset, New Jersey

Detective's e-mail: Bloomfield under investigation
Thursday, August 12, 2010
BY JEFF FRANKEL
Bloomfield Life
of Bloomfield Life

BLOOMFIELD - The township has settled out of court with a government watchdog who was seeking correspondences between the prosecutor's office and a council member.

As part of the settlement with Somerset County resident John Paff, the township released an e-mail between an Essex County Prosecutor's Office detective and Councilwoman Patricia Spychala and will pay Paff $4,913 in costs and legal fees. Paff, chairman of the Libertarian Party Open Government Advocacy Project, accused the township of violating the state's Open Public Records Act.

Now that he's seen at least part of the conversation, Paff said he does not understand why the information he requested was not immediately released. To him, it appears there was nothing damaging anyone's reputation.

"The e-mail is innocuous," wrote Paff to Bloomfield Life. "It does nothing more than confirm what I already knew - that the prosecutor's office was conducting some sort of investigation involving Bloomfield. It's hard to understand why the township dug in its heels and spent so much money trying to suppress this e-mail.

"I suppose, however, that with a bottomless well of taxpayer dollars at its disposal, the township administration can afford to make these types of decisions."

These are some the same documents Bloomfield Life has tried obtaining for several months. There is a caveat: a letter and e-mail between Township Attorney Brian Aloia and Spychala's personal attorney Edward Kologi are not yet released. It is unclear if and when the township will release them.

Calls made to Spychala and Aloia were not immediately returned Thursday.

According to the complaint first filed in April, Paff requested the specific e-mail through OPRA but was denied by Municipal Clerk Louise Palagano, who said it was protected under attorney-client privilege.

OPRA records must be turned over to anyone requesting them no longer than seven business days. Some documents - such as budgets and bills - are subject to immediate access. But there are 24 exemptions, including "any record within the attorney-client privilege," according to the state.

Superior Court Judge James Rothschild was scheduled to hear the OPRA case on Sept. 16 at the Historic Courthouse in Newark.

"Our office is currently conducting an investigation concerning certain allegations involving the Township of Bloomfield and believe that you may have information which could assist that investigation," reads one sentence of the entire four-sentence e-mail from Det. David Campo to Spychala.

For Paff, he can see now that there is certainly no exemption that would have kept the public from seeing this e-mail, as Campo asks Spychala to call him to be interviewed.

"The attorney-client privilege doesn't even arguably apply, and there is no reason why the township couldn't have just turned the e-mail over to me when I requested it," Paff wrote.

E-mail: frankel@northjersey.com

Thursday, August 5, 2010

Ethics Complaint dismissed against 30 Gloucester Twp officials

On October 8, 2008, I filed a complaint with the Local Finance Board against thirty (30) Local Government Officers serving Gloucester Township (Camden County). I filed this complaint because each of those officers had failed to file the Financial Disclosure Statement (FDS) that the Local Government Ethics Law requires to be filed on or before April 30, 2008.

After I filed my complaint, the 30 officials apparently filed their tardy FDS forms--the last one to file was Zoning Board Member Kevin Bucceroni on December 5, 2008.

On July 30, 2010--about a year and half after Bucceroni's filing--the Local Finance Board notified me that my complaint was "dismissed" because it "no longer [has] a factual basis." In other words, the fact that none of the officials had filed by the April 30, 2008 deadline does not, in the Local Finance Board's view, constitute a violation of the Ethics Law. Thus, local government officers are free to simply ignore the FDS filing requirements, knowing that they can simply file their tardy forms in the unlikely event that someone complains.

I have been complaining for years about the Local Finance Board's failure to meaningfully enforce the Ethics Law. In one news article I was quoted as saying: "If [the Local Government Ethics Law and the attorney disciplinary system] were intended to actually punish wrongdoing, I think they fail miserably. . . I believe that a decent argument could be made that neither system was intended to ferret out unethical conduct and discipline the perpetrators. Rather, these systems were intended to placate the public and create an illusion that lawyers and politicians are actually subject to oversight."

Now that I've received the 30 tardy records (actually I received 28 of them--the Local Finance Board did not send me one for Rent Stabilization Board member Laurence Lamourine and sent me the 2007 form filed by District No. 1 Fire Commissioner Ralph Ferninando), I've decided to put them on-line so that Gloucester Township residents can easily access them. The records are here.

P.S. Observant readers will note that: a) District No. 1 Fire Commissioner Ralph Ferninando's filing indicates that he has no source of income and b) Section II.A of Fire Commissioner Kevin Donahue's form is filled out incorrectly.

Roselle pays $3,000 in attorney fees to OPRA claimant

On August 5, 2010, the Borough of Roselle paid my lawyer, Walter Luers of Oxford, New Jersey, $3,000 to settle an Open Public Records Act (OPRA) case that began nearly three years ago.

The matter began when I read a September 1, 2007 Star Ledger editorial stating that Roselle Borough (Union County) “council members also complain they haven't seen any minutes for borough meetings since last October.” In order to investigate a probable violation of the Open Public Meetings Act, I submitted a September 2, 2007 request for Borough records, including the resolutions, "that authorized the first two (2) Borough Council nonpublic (i.e. closed or executive) meetings that occurred after October 1, 2006."

The Borough denied this request (and similar requests) claiming that it did "not identify a document, but rather requires that a work task be done by a government employee.” Roselle's argument was that the Open Public Records Act (OPRA) does not require it figure out the first two dates after October 1, 2006 that the Borough Council went into executive session. Rather, the Borough argued, it was my job to look through the Council's public meeting minutes in order to ascertain the dates of the executive sessions, and then to identify the desired resolutions by date. I, through Mr. Luers, filed a complaint with the Government Records Council (GRC).

On April 30, 2008, the GRC issued its opinion (Paff v. Roselle, GRC Case No. 2007-255) and held that my request was not an "open-ended search" that was intended "as a research tool . . . to force government officials to identify and siphon useful information." See MAG Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J.Super 534, 546 - 549 (App. Div. 2005). It also held that my request identified the requested records "with reasonable clarity" in accordance with Bent v. Stafford Police Department, 381 N.J. Super 30, 37 (App. Div. 2005). Ultimately, the GRC ruled that my request was "not open-ended, nor does it require research, but rather requires the Custodian to locate the corresponding meetings and provide resolutions and meeting minutes."

This case made an obvious--but I believe important--distinction between a custodian's duty to "research" agency records and "searching" for identifiable records.

On June 25, 2008, the GRC ordered Roselle Borough to pay my attorney fees for bringing the action. The GRC also found that Clerk Rhona Bluestein's handling of my request appeared to be "negligent and heedless" but not serious enough to warrant her being fined $1,000. After two years, the amount of the attorney fees due was agreed to be $3,000.

The settlement check, settlement agreement and other case filings are on-line here.

Tuesday, August 3, 2010

Sexual Harassment in Brigantine: Open letter to Mayor and Council

I sent the following letter to Mayor Guenther and the Brigantine City Council today. The documents referenced in the letter (my records request and the City's denial) are on-line here.

I am making this letter public for two reasons.

First, I want to put Brigantine taxpayers on notice that I may sue the City and that both my attorney fees and the City's might ultimately be borne by the taxpayers. Thus, it may be in citizens' interest to urge their elected representatives to disclose the requested information rather than continue to suppress it.

Second, it's possible, perhaps likely, that readers might be willing to share any information they have regarding this sexual harassment matter. Please feel free to either post that information on the pennjersey.info or njo.com forums where this open letter appears or send it privately to me at paff@pobox.com I ask that readers NOT publicly post information that would identify the victim of the sexual harassment.

John Paff, Chair
New Jersey Libertarian Party's
Open Government Advocacy Project
Somerset, New Jersey
----------------------------
August 3, 2010

Hon. Philip J. Guenther, Mayor, and members of the
Brigantine City Council
1417 W. Brigantine Ave
Brigantine, NJ 08203 (Via E-mail only to lsweeney@brigantinebeachnj.com )

Dear Mayor Guenther and City Council members:

I write both individually and as Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project. The project's mission is to promote openness and transparency in government, particularly at the local level. Our work often involves requesting (and suing for) records evidencing official misconduct that public officials would rather keep hidden from the public. Please be aware that I consider this to be an "open letter" and have posted it on various Internet forums.

A while back, I received an anonymous tip alleging that a) a high ranking member of the Brigantine city administration had been involved in sexual misconduct, b) that an outside law firm, at a cost of over $10,000, investigated this incident, and c) that an agreement was reached where the alleged offender was allowed to quietly retire in lieu of being disciplined.

In early July, I submitted a records request for invoices that the City received from law firms. In response, I received many pages of records and among them was an April 15, 2010 invoice from Archer & Greiner, P.C. that showed that the City was billed $13,975 for a "special counsel investigation." The invoice showed that interviews were conducted, an investigation report was drafted and that an "agreement" was prepared. Upon receipt of this invoice, I submitted a more targeted records request for the records referenced in the invoice.

On August 3, 2010, I received a response from Timothy P. Maguire, Esq., who serves as Brigantine's attorney. My records request was denied except that

a) the City conceded that the investigation related to a sexual harassment complaint;

b) that the "investigation memos" referred to in the invoice, which were not disclosed, consisted of 1) an "investigative chronology of Internal Affairs case," 2) an "investigative Internal Affairs report of Capt. Raymond Cox," 3) an "initial complaint to the Internal Affairs Unit of the Atlantic County Prosecutor's Office," and 4) an "Internal Affairs Report of Capt. John B. Stone, Jr."

c) that an agreement was ultimately reached "that resolved the dispute between the parties."

Based on this response, it's reasonable to conclude that a city official, almost certainly an official within the police department, was accused of sexual harassment and, after an investigation, entered into some sort of agreement that resolved the matter to satisfaction of both the accused official and his or her accuser.

While I appreciate the victim's desire for anonymity, I do not believe that the person accused, at least if he or she is or was a high ranking official, should remain anonymous. Instead, I think that the public's right to know the identity of the accused and the terms of the agreement between the parties outweighs any legitimate governmental need for confidentiality.

Thus, I am contemplating suing the City of Brigantine for access to the parts of the denied records that a) identifies the accused official, b) provides the general nature of the official conduct complained of and c) sets forth the terms and conditions of the agreement reached with the official. My suit will specifically NOT seek to identify the alleged victim. Also, although my suit will claim that the City's denial violated the Open Public Records Act, it will also seek the records under the common law right of access, which I consider to be a stronger argument.

I am informed by the City's Internet site that the Mayor and Council meets on the 1st and 3rd Wednesday of each month. Accordingly, I ask that the Council, at either its August 4, 2010 or August 18, 2010 meeting, re-evaluate Mr. Maguire's response to my request and consider voluntarily disclosing the information set forth in the immediately preceding paragraph. Since this is "anticipated litigation," I believe that the Council's discussion could take place in executive session in accordance with N.J.S.A. 10:4-12(b)(7).

While I have forty-five days within which to file my lawsuit, please keep in mind that I can't wait until the very end of that period before deciding whether or not to actual pursue a lawsuit. So, unless the City informs me, on or before Friday, August 20, 2010, that it agrees to disclose the requested information, I will consult with counsel and will file my suit, if I decide to, without further advance notice to the City.

Thank you for your attention to this matter.

John Paff

Thursday, July 29, 2010

OPRA hearing on August 6th in Jersey City

On Friday, August 6, 2010 at 1:30 p.m., Hudson County Superior Court Judge Bernadette DeCastro will hear argument in the Open Public Records Act and common law case of Bruce D. Kowal v. City of Bayonne, et al, Docket No. HUD-L-3505-10. The lawsuit is on-line here.

At issue in the case is whether Kowal, who is representing himself in the suit, is entitled to see an unredacted, or at least a more narrowly redacted, version of an Incident Report issued by the Bayonne Police Department regarding a Bayonne City Councilman found unconscious in his car by police in August 2008. The redacted incident report is at pages 59 and 60 of the PDF file at the above link.

According to a September 4, 2008 Star Ledger article ("Ted Connolly blames blood pressure for passing out in his car." by Jason Fink), Councilman Connolly claimed that after he had three glasses of wine at a friend's house, he began to feel dizzy as was driving home and pulled his car to the curb. He said that he telephoned his friend on his cell and told him he was sick. He claims, however, passed out before he could complete the conversation. The friend, alarmed, called police in both New York City and Bayonne and Bayonne Police ultimately found Connolly unconscious in his car. According to the article, Connolly said that the police did not give him a Breathalyzer or take blood to determine whether he was intoxicated. He blamed his unconsciousness on low blood pressure.

Kowal claims that the matter redacted from the report might provide more information on questions such as whether Mr. Connolly appeared to be intoxicated, whether he answered questions about the amount of alcohol he consumed and whether police had his car towed away from the scene. Kowal wants this information so that he can determine whether police afforded Connolly special treatment because he was a Council member.

The August 6, 2010 hearing is open to the public. Those who wish to attend are encouraged to call Judge DeCastro's chambers at 201-795-6880 the morning of the hearing to ensure that it has not been cancelled or postponed.

Tuesday, July 27, 2010

New records lawsuit: Paff v. South Bound Brook

On July 9, 2010, I filed a lawsuit against the Borough of South Bound Brook (Somerset County) seeking disclosure of records of a police investigation involving the "Mayor's wife's family." I am being represented by Walter Luers, Esq. of Oxford.

My lawsuit, along with my records requests and pre-suit correspondence with Borough Clerk Donald Kazar and Borough Attorney William Cooper are on-line here.

I originally learned of the police investigation that is at the heart of this lawsuit by reading Robert Verry's (former South Bound Brook police chief) postings on the NJ.com forums. When I learned that the Borough intended to charge Mr. Verry $375 to redact the police records related to the police investigation, I made a records request for a narrow subset of the same records Mr. Verry had requested. I had hoped that for little or no cost, I would be able to obtain records that would confirm or refute Mr. Verry's suspicions that information about this police investigation was being intentionally suppressed. (See Mr. Verry's Post 3180. "How much are YOU willing to spend?" 19:45 ET)

In my May 24, 2010 records request, I stated: "This is a perfect example of a situation I've encountered many times: Where a government agency's apparent stonewalling raises a public perception that something is being covered up. . . . In my experience in similar cases, when the records are finally made available, it often becomes evident that there was no cover-up. The net results, however, are a) the taxpayers have paid their agency's lawyer (and perhaps the requestor's lawyer) substantial legal fees arising out of the Open Public Records Act (OPRA) enforcement action and b) every agency official has needlessly lived under a cloud of suspicion that they or a member of their family were the target of a police investigation."

In his May 24, 2010 e-mail, Mr. Kazar candidly revealed that "the investigation involved the Mayor's Wife's family but the Prosecutor's found no case" (p. 3 of the PDF file at the above link). Then, in his June 14, 2010 denial of my request, Mr. Cooper provided me with a two-page index of the records to which I was being denied access (pp. 33-34).

At this point, it was apparent to me that a member of the Mayor's wife's family was involved in an investigation that produced approximately 25 investigative records, including 25 pages of photographs, a 9-page "evidence chain of custody form" and investigation reports filed by two police officers, one police sergeant and one police lieutenant.

I don't know what happened or who or what was being investigated. (A former member of the South Bound Brook Council, however, recently asked a question at a Council meeting regarding a "rumor" that she heard. See the second video here starting at the 7min 15sec mark.)

I do believe, however, that the public's interest in knowing who was investigated, the nature of investigation and the reasons that the prosecutor chose not to file charges is greater than the Borough's interest in keeping this matter confidential.

Saturday, July 24, 2010

OPRAing a public body's legal services invoices

A worthwhile exercise for citizen activists is to request their municipality's, school board's or other agency's legal services bills. These records permit citizens to know a) how much money the agency is spending on lawyers and b) a general idea of what the money is being spent on.

As an illustration, I submitted an OPRA request for invoices for legal services provided to the Plainfield (Union County) Board of Education for a three month period. I have placed those invoices, which span nearly forty pages, on the Internet here.

Here are some things that a citizen can learn from the invoices:

1. That the Plainfield Board of Education paid a single law firm approximately $77,500 during a three month period in 2010. (Annualized, this calculates to approximately $310,000 per year).

2. The law firm gets paid a $5,000 monthly retainer in addition to $150 per hour for legal services performed.

3. An ELEC search shows that the law firm, Hunt, Hamlin and Ridley of Newark regularly contributes to Democratic campaigns, including Sharon M. Robinson-Briggs' 2009 Primary election campaign for Mayor of Plainfield.

4. The court and administrative cases that the Board is a party to. (Actually, the Board redacted the case names from the invoices, but I expect that the Board will disclose these case name after considering my July 26, 2010 letter, which is also available at the above link.) This allows citizens to OPRA the complaints filed in those cases (and the settlements or judgments that resolved those cases) in order to learn who is suing the agency and why.

5. If disciplinary action is being taken against employees. For example, the invoices reveal that "CSA" was apparently suspended with pay and had tenure charges filed against him her her earlier this year. (see pages 27 and 28 of the PDF at the above link).

6. Of possible violations of the law committed by the agency. For example, Dr. Gallon, on April 14, 2010, alleged that the Board violated the Open Public Meetings Act.

In sum, legal services invoices contain useful information for citizen activists who wish to monitor a public body and hold it accountable.

John Paff
Somerset, New Jersey

Monday, July 19, 2010

Court orders release of surveillance DVD showing trespassing police officer

In a 25-page opinion issued on July 13, 2010, Union County Superior Court Judge Kathryn A. Brock ruled that while I am not entitled to a police surveillance video under the Open Public Records Act (OPRA), I am entitled to it under the common law right of access.

At issue in the case is a surveillance video that shows former Garwood Police Officer Gennaro Mirabella trespassing after hours in Garwood Borough's offices. Background on this case is available at my blog entry on-line here.

Judge Brock held "that the public interest in viewing the actions of the police officer which caused the Borough to issue a complaint against him for trespassing in that office, in context of how the Borough ultimately dealt with his conduct substantially outweighs the concerns raised by the Borough about the effect of the disclosure on the security of the Clerk's office."

Judge Brock ordered Garwood Borough to give me the requested surveillance video within 45 days. She also asked for briefs from both sides in order to determine whether my lawyer, Richard Gutman of Montclair, is entitled to have his attorney fees paid by the Borough.

Her order and opinion are on-line here. All the filings in the court, including Judge Brock's order and opinion, are on-line here.

Saturday, July 17, 2010

Citizens file petition to roll back Borough's salary increase

Voters in the Borough of Spring Lake Heights (Monmouth County) employed a little-used statutory mechanism to force the Borough Council to reconsider two ordinances that would have raised salaries for some Borough officers and employees. The purpose of this posting is to explain the mechanism so that voters in other municipalities can also avail themselves of it.

At issue are Ordinances 05-2010 and 06-2010, which were both enacted on June 14, 2010. The ordinances, respectively, sought to raise certain employee and officer salaries retroactively to January 1, 2009 and January 1, 2010.

On July 6, 2010, a group of citizens who call themselves "Let Those Who Pay Have The Say" submitted a petition, signed by 432 voters, invoking the provisions of N.J.S.A. 40A:9-165. That statute provides that whenever an ordinance

shall provide for increases in salaries, wages or compensation of elective officials or any managerial, executive or confidential employee, the ordinance or that portion thereof which provides an increase for such elective or appointive officials shall become operative in 20 days after the publication thereof, after final passage, unless within said 20 days, a petition signed by voters of such municipality, equal in number to at least 5% of the registered voters of the municipality, protesting against the passage of such ordinance, be presented to the governing body, in which case such ordinance shall remain inoperative unless and until a proposition for the ratification thereof shall be adopted at an election by a majority of the voters voting on said proposition.

The number of registered voters in Spring Lake Heights Borough is 3686, 5% of which is 185 voters. Accordingly, the petition was sufficient to suspend operation of the ordinances and put the two salary increase questions on the November 2, 2010 general election ballot.

On July 12, 2010, in response to the petition, the Borough Council introduced Ordinances 08-2010 and 09-2010 which will, respectively, repeal Ordinances 05-2010 and 06-2010. The two repeal ordinances will be voted upon on July 26, 2010. If they pass, there will be no need to put the salary increase questions on the November ballot.

The petition, ordinances and and the full text of N.J.S.A. 40A:9-165 are on-line here.

The statute can be used in any New Jersey municipality, including those which are not governed by Faulkner forms of government.

Friday, July 9, 2010

Glen Ridge Borough agrees to use more descriptive closed session resolution

On June 15, 2010, I checked the meeting minutes of the Glen Ridge (Essex County) Borough Council and found that the Council always uses the same, vague resolution when it goes into executive or closed session. The boilerplate resolution states: "The Mayor And The Borough Council of The Borough Of Glen Ridge shall convene in 'Executive Session' to discuss Legal and Personnel matters in accordance with the [Open Public Meetings Act.]"

I wrote to the Mayor and Council on June 21, 2010 urging them to provide more detail in their resolutions so that the public and press in attendance can better understand the issues that are being privately discussed. I attached a "model" resolution that I had drafted and asked them if they would consider using it instead of their present resolution.

I recently learned that the Council met on June 28, 2010 and agreed, going forward, to use my "model" form of resolution. The draft minutes from the June 28, 2010 meeting state, in pertinent part:

EXECUTIVE SESSION RESOLUTION

Administrator Rohal reviewed the letter from John Paff regarding executive session resolutions. Mr. Paff correctly points out that the resolution should specifically note the reason for the executive session. The Borough will be using the model resolution which Mr. Paff provided for all future executive sessions.

I have placed my letter to Glen Ridge and my "model resolution" on line here.

Readers who would like to urge their own municipal councils, school boards or other government bodies to improve their closed session resolutions should feel free to borrow the language from my letter and resolution.

Monday, July 5, 2010

Stratford Borough improperly delaying access to executive session minutes

On July 6, 2010, the New Jersey Libertarian Party's Open Government Advocacy Project sent the following letter to Stratford Borough (Camden County) Mayor John Gentless and the Borough Council.

Hopefully, the Council will discuss this issue at its July 8, 2010 meeting and adopt a policy that will ensure that citizens get prompt access to Borough Council executive meeting minutes.

John Paff, Chair
New Jersey Libertarian Party's
Open Government Advocacy Project

Dear Mayor Gentless and Council Members:

I write, both individually and as Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project, to appeal a decision by the Stratford Borough Solicitor to deny me access to even redacted versions of the minutes of the Borough Council's executive meetigs held on November 5, 2009; February 4, 2010; February 16, 2010; March 4, 2010 and March 15, 2010.

By way of background, I made a records request for those executive sessions minutes on June 15, 2010. On June 24, 2010, I received the following e-mail from Borough Clerk John Keenan:

The Borough Solicitor and myself have reviewed the draft of the executive sessions you have requested, which are November 5, 2009; February 4, 2010; February 16, 2010; March 4, 2010 and March 15, 2010, and the draft for these sessions are not ready for the Governing Body to approve at this time.

Based on NJSA 47:1A-1.1 the definition of a "government record" does not include inter-agency or intro-agency advisory, consultative, or deliberative material.

Until the Governing Body approves the executive session minutes, the draft is not considered a record.

N.J.S.A. 10:4-14 requires the non-exempt portions of the Borough's closed minutes to be made "promptly available to the public." I believe that denying a request made in June 2010 for minutes of a meeting that occurred in November 2009 is not “promptly available” as required by the statute.

Moreover, since the purpose of approving minutes is to ensure that they accurately reflect what occurred during the meeting, wouldn’t it be best to have presented the November 5, 2009 minutes for approval a the very next meeting while what occurred at the meeting was still fresh in the Council members’ minds? And, waiting until 2010 to approve minutes from 2009 is undesirable because it allows for the possibility of a newly elected council person being asked to approve minutes for a meeting at which occurred before his or her election to office.

A few years ago, I sued the Borough of Lawnside for similar Open Public Meetings Act violations. On April 13, 2007, Camden County Assignment Judge Francis J. Orlando signed an order which declared that Lawnside Borough had "violated [my rights under the Open Public Meetings Act, Open Public Records Act and common law by denying [me] access to the minutes and notes of [Lawnside's] nonpublic meetings for more than six months." Judge Orlando also ordered Lawnside to "make minutes of its nonpublic meetings available to the public no later than sixty (60) days after the date of each nonpublic meeting." A copy of Judge Orlando's Order is [available on-line here].

Stratford has denied me access to minutes of an executive session held on November 5, 2009--more than nine months ago. Since Judge Orlando has already ruled that Lawnside violated the law by denying access to minutes to meetings held six months in the past, it stands to reason that he would also find Stratford in violation if were to bring suit.

I have no desire to bring suit against Stratford. Rather, I prefer that towns simply comply with what the law requires. Would Stratford be willing to adopt a policy that would, going forward, a) require executive session meeting minutes to be presented for Council approval at the next regular meeting and b) require that minutes of executive meetings, redacted as necessary, be publicly available by no later than sixty days after the meeting? This is the same time period that Judge Orlando imposed upon Lawnside.

I would appreciate it if you would discuss this issue at the Council's July 8, 2010 Agenda Meeting and let me know your thoughts. I would also appreciate it if you would reconsider my request for the minutes, redacted as necessary, the Council's November 5, 2009; February 4, 2010; February 16, 2010; March 4, 2010 and March 15, 2010 executive meetings.

Thank you very much for your attention to this matter.

Sincerely,


John Paff

Saturday, July 3, 2010

Internal Affairs Complaint against the Garwood Police Chief

Update: August 14, 2010

Internal Affairs Complaint dismissed against Garwood Police Chief

As previously reported, I filed an Internal Affairs complaint on May 12, 2010 against Garwood Police Chief William Legg for submitting a false certification in a civil case that misled a Superior Court Judge.

By letter dated July 30, 2010, Union County Prosecutor's Office's Chief of Detectives Robert T. Buccino informed me that my complaint was "determined to be unfounded" and was dismissed. A copy of my complaint and the dismissal letter is on-line here.

According to the Attorney General's Internal Affairs Policy & Procedures, Revised November 2000, a complaint is considered "unfounded" if the investigation determines that "the alleged incident did not occur."


During an April 30, 2010 hearing before the Hon. Kathryn A. Brock in the Union County Superior Court, I became aware that a certification filed by Garwood Borough Police Chief William Legg was at odds with the facts.

By way of background, I am suing Garwood for access to video surveillance of former Garwood police officer Gennaro Mirabella trespassing in the Borough's offices. Legg, in order to bolster Garwood's claim that disclosing the video would jeopardize security at the Borough offices, submitted a written certification to the court stating that the Borough's safe was depicted in the video. After the judge and two lawyers viewed the video in a back room, it was publicly disclosed that the safe was NOT depicted in the video. Thus, it appears that Chief Legg made a false statement that misled me and the court. (For more background on the hearing see my blog entry here.)

I believe that people, especially government officials, must tell the truth in the court filings. Accordingly, on May 12, 2010, I filed a complaint against Chief Legg with the Garwood Police Department's Internal Affairs Unit. A copy of that complaint is on-line here.

On Monday, June 28, 2010, I was contacted by Detective Sergeant Edward Koenig of the Union County Prosecutor's Office, and at his request, I appeared at his office in Elizabeth on Thursday, July 1, 2010 to give a formal, sworn statement regarding this matter. Sergeant Koenig explained that the Union County Prosecutor's Office is handling my complaint because it would not be appropriate for Garwood's Internal Affairs Officer, who is Legg's subordinate, to investigate the matter.

Sergeant Koenig said that he will release his final report on the mater in 30 to 45 days. Upon receipt, I will post it on-line and direct readers' attention to it.

Wednesday, June 30, 2010

Supreme Court holds that OPRA requires disclosure of settlement agreement

On January 25, 2010, the New Jersey Supreme Court upheld a 2009 Appellate Division ruling that required Monmouth County to disclose a settlement agreement arising out of a sexual harassment lawsuit filed by a county employee.

The Court ruled: "A governmental entity cannot enter into a voluntary agreement at the end of a public lawsuit to keep a settlement confidential, and then claim a 'reasonable expectation of privacy' in the amount of that settlement." The decision is on-line here.

I was one of the plaintiffs in the lawsuit and was ably represented by Walter M. Luers, Esq. of Oxford.

Monday, June 28, 2010

Bloomfield sued for refusal to disclose e-mail

On June 11, 2010, Montclair Attorney Richard Gutman filed suit on my behalf against Bloomfield Township (Essex County). At issue in the suit is an e-mail sent by the Essex County Prosecutor's Office to a Bloomfield Councilwoman. A news article about the lawsuit appears below and the case documents are on-line here.

John Paff
Somerset, New Jersey
------------------
Advocate sues township, seeking release of documents
Thursday, June 24, 2010


BY JEFF FRANKEL
Bloomfield Life

A New Jersey open public records advocate is suing the township, accusing it of withholding unrestricted documents from the public.

John Paff, chairman of the Libertarian Party Open Government Advocacy Project, filed suit with the State Superior Court in Newark June 11, alleging Bloomfield violated the Open Public Records Act (OPRA) when it did not release to him an e-mail from the Essex County Prosecutor's Office to Councilwoman Patricia Spychala.

This is among the same documents Bloomfield Life has been trying for several months to obtain without success, as the township asserts they are protected under attorney-client privilege.

"Our position is it's a government record and no apparent exemption applies to it," said Paff, reached by phone. "It's not supposed to be broadly applied. The whole point of OPRA is to construe it in favor of public access. The public has the right to know if their (government is) acting reasonably and responsibility."

OPRA records must be turned over to anyone requesting them — and in no more than seven business days. Some documents are even subject to immediate access: e.g. budgets, bills, vouchers, contracts and public employee salary and overtime information. But not all documents are public record (there are 24 exemptions), according to the state, including "any record within the attorney-client privilege."

The township received the complaint yet as policy does not comment on pending litigation, said Township Administrator Fred Carr.

According to the complaint, on April 28 Paff requested a copy of a Nov. 5, 2009 e-mail between Detective John Campo and Spychala. On May 10, Municipal Clerk Louise Palagano denied Paff access to the e-mail, stating, "(in) reviewing recent information provided by the GRC (Government Records Council) as guidance, as well as the specific facts of this record, I am denying the above item due to…attorney-client privilege."

The GRC, describing itself as "the facilitator of open government in New Jersey," is a government agency charged with making government records easily accessible to the public.

The two-count lawsuit alleges Bloomfield denied access to OPRA documents and the common law. Paff is asking for a declaration that the township violated the Open Public Records Act and that he be granted access to the requested e-mail. It also seeks attorney's fees and other relief as the court deems just.

A hearing is scheduled for Friday, July 23 at 10 a.m. before Judge James S. Rothschild.

Paff, a Somerset resident, is an open government advocate who regularly initiates lawsuits against New Jersey governing bodies, often with much success, to gain access to public records. He says he is "pushing the envelope" to ensure the state clarifies its stance on certain issues.

"People in Bloomfield are paying a bit of taxes to support this apparatus called Bloomfield Township," he said. "It doesn't matter if it's my town or your town…I ask for records all over the state. I do it to vindicate the public's right to know."

He said government, especially on the local level, tends to be secretive by nature.

"If not everyday, it's every other day," he said. "Municipal government and school boards just have a propensity to keep records secret. If there is any question in mind, they favor in mind of secrecy."

E-mail: frankel@northjersey.com

Appellate Court: List of employee's training courses is public record

On June 28, 2010, the Appellate Division reversed a Somerset County Judge's dismissal of an Open Public Records Act (OPRA) case. The eight-page opinion in the case, Vasil Kovalcik v. Somerset County Prosecutor's Office, is on-line here.

The records requested were the curriculum vitaes for and lists of training courses taken by two detectives in the prosecutor's office. After the OPRA lawsuit was filed, the custodian certified that the only record responsive to the request was a "two-page document reflecting training courses attended by [one of the detectives]. The prosecutor's office provided a copy of the two-page list to the trial judge for an in camera review. During oral argument, the prosecutor's office argued that the two-page record was "protected from public disclosure as a personnel record under N.J.S.A. 47:1A-10."

During argument, the unidentified trial judge asked the custodian, who was sitting in the courtroom but not placed under oath, to "describe the basic qualifications for someone to become a prosecutor's office [detective]." The custodian replied that a candidate must take a course offered by the Division of Criminal Justice Academy and receive a course certificate. (As a matter of policy, the Appellate Division never discloses the identifies of trial judges in its opinions, except when it affirms the trial judge's ruling.)

The trial judge noted that N.J.S.A. 47:1A-10 exempts "personnel records" from access, except that records that "disclose conformity with . . . educational . . . qualifications required for government employment" are public. Based on the custodian's comments, the judge concluded that the two-page record was exempt because it revealed training courses taken that exceeded those required for the detective's position. The judge held that any training beyond the Division of Criminal Justice's course was "at the pleasure of the prosecutor" and did not need to be disclosed.

The Appellate Division first found that the unsworn comments made by the custodian were "wholly devoid of evidential value because the information" was not sworn to under oath. Therefore, the court found, the custodian's written certification was the only evidence the government could use to carry its burden of proving that the record is exempt from access.

The Appellate Division next found that to the extent that N.J.S.A. 47:1A-10 was ambiguous, it "must be resolved against those seeking to withhold information from public scrutiny." After reviewing the record themselves, the Appellate Division judges specifically found the list of training courses did "not contain any private or confidential information that would trigger any concern for [the detective's] privacy rights."

In sum, the Appellate Division reversed the trial judge's decision and ordered release of the two-page listing of the detective's training courses. The requestor's lawyer was Jack Venturi of New Brunswick.

Monday, June 21, 2010

Waiving the Attorney-client privilege

Just because a municipal attorney's writings to the municipal governing body may be attorney-client privileged doesn't mean that the body can't or shouldn't waive the privilege in certain cases.

Following is an excerpt from the April 21, 2010 minutes of the Spring Lake Heights (Monmouth Council) Borough Council meeting. At issue was my request for the Borough Attorney's written opinion on how many members of the Council constitute an "effective majority" for the purposes of the Open Public Meetings Act. I wanted to publish the opinion on this blog and comment on it.

Request from John Paff to waive the attorney client exemption for his OPRA request for “effective majority” opinion from Frederick Raffetto, Esq. – Councilwoman Crippen - Mayor Enright gave an overview of the history of the John Paff OPRA request for Fred Raffetto's legal opinion on Effective Majority, which was initially denied by the Municipal Clerk. Fred Raffetto added to the history and elaborated on his opinion on the matter, wherein he did not recommend that this privilege be waived. The Mayor deferred to Councilwoman Crippen to expand on her thoughts on the topic. Ms. Crippen noted that she felt Mr. Raffetto's opinion was a good opinion, and she felt that the public had paid for the opinion. She also noted if the Council wanted to rely on that opinion if questioned in the future, it would be best to have the opinion as a public record. There was a discussion among the Governing Body members of the prevailing considerations. Ms. Crippen maintained that this opinion should be a public document; Councilman Brennan concurred. The Clerk elaborated on the reasoning for her rejection of this request and how she would handle any other similar OPRA request that she may receive in the future. The Mayor asked the individual Council Members for their respective opinions. Ms. Crippen asked what would happen if a member of the public asked for this opinion as a taxpayer in Spring Lake Heights; Ms. Casagrande responded that she would deny it under the Attorney-Client Privilege exception to the Open Public Records Act. There was a further discussion of the matter among the Governing Body members and the following motion was offered by Councilwoman Crippen.

MOTION TO WAIVE THE ATTORNEY CLIENT PRIVILEGE AND ALLOW THE RELEASE OF ATTORNEY RAFFETTO’S EFFECTIVE MAJORITY OPINION TO THE PUBLIC

Seconded by Brennan. Roll call: Ayes: Crippen and Brennan. Nays: Cindea, Kegelman, King and Maccanico.


I agree with Crippen and Brennan. I think that there's a difference between an attorney's opinion on, say, current litigation involving the Borough and advising the Council on its responsibilities under the Open Public Meetings Act. In the case of litigation, there is an identifiable adversary--the opposite party in the lawsuit--from whom secrets legitimately need to be kept. But, in the present case, there is no "adversary"--rather, those who are being kept in the dark are the voters and taxpayers themselves.

This reminds me of my recent loss where the New Jersey Appellate Division denied the public access to information regarding the Division of Law's Administrative Agency Advice (AAA) letters which are, in essence, a body of law that state agencies use to enforce statutes and regulations. For background, click here and here.

Spring Lake Heights' attorney's opinion on how many members of the municipal council constitute an "effective majority" similarly guides--or even virtually controls--the Borough on how it self-enforces the Open Public Meetings Act. For many of the same reasons I disagree with the Appellate Division's opinion, I also disagree with the Borough's decision to shield the Borough Attorney's opinion from public view.

John Paff
Somerset, New Jersey

Tuesday, June 15, 2010

Government lawyers who go beyond giving advice may be civilly liable

I have heard complaints from several readers that their municipality or school board attorneys do not restrict themselves to giving legal advice. Rather, I am told that such attorneys dominate the elected officials and usurp their role of establishing policy. Today, I posted an entry on my blog (click here) which may interest readers who have similar complaints about their public body's lawyer.

To summarize the matter, a resident sued Township officials, including the Township attorney, for retaliating against him. The lawyer moved for summary judgment, claiming that he was immune from suit.

Federal Judge Mary L. Cooper, in a written decision, held that the lawyer wasn't necessarily immune from suit because there was evidence that he, without approval by or consultation with the elected officials, changed the Township's sign policy to the detriment of the plaintiff. Judge Cooper also observed that the Township attorney served in that position since 1976 and before 1976 served as a member of the municipal governing body. Judge Cooper said that while this could be innocuous, "such a long history with a single client does appear to raise an issue of fact whether [the lawyer] made policy determinations."

Cooper's written opinion is at the link above, and the relevant part of the opinion are at pages 17 to 26.

In sum, lawyers who are de facto policy-makers are not necessarily immune from lawsuits arising out of the policy determinations they make.

Friday, June 11, 2010

Another interesting hearing in Judge Brock's Union County courtroom

Today, June 11, 2010, Judge Kathryn Brock heard more argument in my OPRA and common law access case against the Borough of Garwood. At issue, readers may recall, is a DVD of former Garwood Police Officer Gennaro J. Mirabella, while in uniform, entering the locked office of Garwood's Chief Financial Officer and opening her desk drawers.

Background on the case can be found here and here.

First, Judge Brock decided that Mirabella, since he has not contacted the court with a request to be heard, is not interested in the case and thereby has conceded that he has no claim that his privacy would be violated by release of the DVD.

Next, Judge Brock posed an interesting question: Is evidence in a criminal case, such as a bag of marijuana or a firearm, within the scope of an expungement order such that those items of evidence would be isolated and made unavailable to public view once an expungement order was entered? If not, she suggested, then why would the DVD at issue in this case be exempt from public access?

My lawyer, Rick Gutman, said that he agreed that the DVD is not shielded by the expungement order but that even if it was, there was still a compelling need for the public to see it, and that the expungement statute, specifically N.J.S.A. 2C:52-19, authorized Judge Brock to release it.

Garwood's attorney, Robert F. Renaud, said that the DVD is clearly a record protected from disclosure by the Mirabella's expungement order, and that the court's power to release expunged records, as set forth in N.J.S.A. 2C:52-19, didn't apply to OPRA and common law actions.

After reserving decision on the question of whether the expungement order requires that the DVD remain confidential, Judge Brock then asked Mr. Renaud to explain why my interest, under a common law balancing test, was less than the Borough's need to keep it confidential.

Mr. Renaud argued that my interest in the DVD was slight because "Paff just wants to see it" and that if the DVD were to be released, people could determine where the police hid the camera and that would expose an "investigative technique" and would make it harder for the police to place the camera in the same spot if it needed to do so in the future.

He then went on to compare the placement of the camera in the Chief Financial Officer's office to a camera placed by police in an apartment's window to record illegal drug transactions occurring on the street. But, Judge Brock said that the reason why the video of drug transactions needs to be kept secret is to prevent the owners of the apartment who cooperated with the police from being identified because the drug dealers might retaliate against them. Since the concern for retaliation doesn't exist in this case, Judge Brock seemed to dismiss Mr. Renauld's analogy.

Mr. Gutman argued, and the judge seemed to agree, that it's not just my personal interest in watching the DVD that's important in this case but rather that the general public has a right to see it because the case involves police misconduct and possible favoritism being given to Mirabella, who is from a very politically connected family.

In the end, Judge Brock said that she's going to review the whole matter and render an opinion within 30 days.