Tuesday, May 25, 2010

Mercer County OPRA hearing on June 22, 2010

Update: The June 22nd hearing has been postponed.

On Tuesday, June 22, 2010 at 9 a.m., Mercer County Superior Court Judge Douglas H. Hurd will hear argument in Paff v. Division on Civil Rights, Docket No. MER-L- 1224-10, in his courtroom at 175 S Broad Street, Trenton.

At issue is the Division on Civil Rights' denial of my request for a listing of discrimination complaints filed with the Division during August 2009. I am being represented by Walter M. Luers of Oxford. The case filings are on-line here.

The public is invited to attend the hearing. Before making the trip, however, call Judge Hurd's chambers at 609-571-4825 to make sure that the hearing hasn't been cancelled or postponed.

Monday, May 24, 2010

OPRA and Disclosure of Executive Meeting Minutes

Sometimes I receive questions that I believe may be of general interest. Here is one such question and my answer to it.


I have a question for you on OPRA and executive session minutes. My municipal council regularly meets in executive session. But, when I submit an OPRA request for those executive session minutes, my request is denied because the municipal clerk hasn't yet written up the executive session minutes even though several months have passed since the executive meeting was held. The clerk tells me that this doesn't violate OPRA because she's not required to give me records that don't exist. What can I do about this?


The Clerk is correct that OPRA doesn't require her to produce records that don't exist. But, she's only telling you half the story.

The Senator Byron M. Baer Open Public Meetings Act (OPMA) (click here for the full text of it) requires that meeting minutes be made "promptly available to the public to the extent that making such matters public shall not be inconsistent with" the section of OPMA that allows certain matters to remain confidential. (See N.J.S.A. 10:4-14.)

So, regardless of OPRA, public bodies are legally obligated by OPMA to make at least redacted (i.e. blacked out) versions of their executive session minutes "promptly" available to the public. What does "promptly" mean? For the answer, please see my blog article here.

So, suppose the public body, despite knowing that OPMA requires it to make its minutes "promptly available," simply ignores this requirement. What do you do then?

There are only two ways to enforce the OPMA: 1) get the county prosecutor or Attorney General to enforce it (see N.J.S.A. 10:4-17), and 2) file a lawsuit to get a court order requiring compliance (see N.J.S.A. 10:4-16). Both methods have their plusses and minuses.

The big advantage of complaining to the county prosecutor or Attorney General is that it's free and relatively easy to do. You could simply send a short letter to the prosecutor or Attorney General saying

"As of [date], the [name of public body] has still not made even redacted minutes of its [date] meeting available to the public, even though [number] months have elapsed. I believe that this violates N.J.S.A. 10:4-14 which requires minutes to be made "promptly available." I ask that your office, in accordance with N.J.S.A. 10:4-17, investigate this matter and assess civil penalties against the elected officials who are violating the law, if you believe this to be warranted."

If you were to send a copy of that the letter to the public body, it might scare it into compliance. It is more likely, however, that both the prosecutor/Attorney General and the public body will simply ignore your letter. Unfortunately, prosecutors typically have an unofficial policy of not enforcing OPMA and many public bodies are aware of that policy.

The other way to go is to file a lawsuit against the offending public body. The problem with this method is that OPMA, unlike the OPRA, does not provide a successful plaintiff with his or her attorney fees. So, if decide to hire a lawyer file suit on your behalf, the court will not make the public body pay for your lawyer no matter how strong your case is. So, unless you're wealthy enough to afford to pay a lawyer, you may have to sue without an attorney. And, the court will typically make the public body pay your out-of-pocket costs of filing a suit ($200 initial filing fee and $30 for each motion, etc.) if you win.

When confronted with this problem, I like to threaten the public body with a lawsuit and try to convince them to produce their minutes more promptly. A example of my threat is on-line here.

Please feel free to borrow from it to whatever extent it may be helpful.

Sunday, May 23, 2010

Loss in Supreme Court

On May 19, 2010, the New Jersey Supreme Court denied a request to review a March 5, 2010 Appellate Division decision holding that the New Jersey Attorney General's unpublished, written opinions transmitted to state agencies are attorney-client privileged communications and thus exempt from disclosure under the Open Public Records Act (OPRA).

I was the plaintiff and appellant in the case, and was ably represented by Richard Gutman of Montclair. All of the filings in the case, from the trial court, the Appellate Division and the Supreme Court are in one 25 MByte file available for download here.

State agencies, such as the Department of Community Affairs, rely upon the Attorney General's opinions, known as Administrative Agency Advice (AAA) letters, as interpretations of the statutes and regulations that the agencies apply and enforce.

The AAA letters are, in essence, a body of law that state agencies use to enforce statutes and regulations. Mr. Gutman argued that the AAA letters were not made in professional confidence or in the course of an attorney-client relationship. He also argued that citizens who are subject to an agency's jurisdiction have a right, under the common law, to access the legal opinions that guide the agency's interpretations of the regulations it applies and enforces.

He also argued that there was a distinction between a government lawyer representing a client in litigation and that same lawyer formulating law that will be applied to others. In support of this argument, he cited two federal appeals court decisions. Yet, the Appellate Division elected to "part company" with the federal appeals court and held instead that "so long as the attorney is providing legal advice in some form, the privilege will apply."

Unfortunately, the Supreme Court declined to review the Appellate Division's decision.

Monday, May 17, 2010

School board president claims that timely release of meeting agendas may "confuse" citizens and lead to "negativity."

On April 17, 2010, the Express-Times published the following article regarding a Warren County school board's refusal to publicize its meeting agendas until ten minutes before the start of the meeting. This school board's position underscores the need for Senate No.l351, introduced by Sen. Loretta Weinberg (D-37) and Assembly Bill No. 2322. an identical bill introduced by Assemblyman Gordon M. Johnson (D-37).

S-1351/A-2322 will, among other things, require public bodies to publicize a meeting's agenda at least three business days prior to the meeting and prohibit matters not on the published agenda from being discussed or acted upon unless the prerequisites for holding an emergency meeting have been met. S-1351/A-2322 is available here.

Please take the time to forward this article to your Senate and General Assembly representative with a request that they cosponsor S-1351/A-2322. Contact information for your representatives is here.
Warren County Technical School Board's policy not to release agendas before meetings is legal, but limits participation

Saturday, April 17, 2010

The Express-Times

FRANKLIN TWP. A woman stood up at the meeting Wednesday to ask the Warren County Technical School Board if there was to be any discussion about rumored cuts to the arts program.

Board President Bradley Bartow said the woman would have to check the agendas for upcoming meetings, because none was currently planned. When she asked when the next agenda would be available, Bartow told her "10 minutes before the (next) meeting."

"There was nothing in that agenda tonight that talked about the elimination of any position," Bartow said following the meeting. "Could there be one there next week? Absolutely, but it will be on the agenda then. That's when we talk about it.

"To give them a week ahead or three days ahead to -- suppose we make a change at the last minute -- that's just not productive."

Technically, the board is doing nothing wrong by withholding meeting discussion topics. New Jersey's Open Public Meetings Law does not require an agenda be released prior to a regularly scheduled meeting.

However, some are displeased with the board's reluctance to release meeting information, particularly in a time when staff and programs are on the chopping block as budgets are trimmed.

"When you announce your agenda in advance, it gives people an opportunity to research the issues and come to the meeting prepared with cogent comments and questions," said John Paff, who chairs the New Jersey Libertarian Party's Open Government Advocacy Project.

"The way they're doing it ... transforms the citizens from participants to observers," he said.

School officials say it has always been board policy not to publicly release agendas until the start of a meeting, but it only began to be enforced recently. Requests from The Express-Times for last Wednesday's meeting plan were denied.

Bartow defended the board's policy following Wednesday's meeting, saying that many times, like that night, the agendas aren't fully formed until just before the meeting. It could be confusing to residents if something was listed as a discussion item and later removed from the schedule.

He also said that policy will continue to stand to avoid "negativity."

"Unfortunately, past history here is things have been taken out of context and used against us and wound up in court where we had to defend our position," Bartow said. "We're not going to do that anymore."

Many of the parents and students at the Wednesday meeting were there to ask the board to spare the school's child study team -- a special education assistance program the board voted to outsource the month before.

"If agendas were available, people ... would have seen that this was coming up for discussion," said Warren Tech PTA President Carol Jacob. "It was done in such a sneaky way, that they didn't approach anybody. If anybody had known anything about this three months ago, we would have been out fighting it when it first popped into their heads."

The lack of advance information is frustrating to district staff, too.

"It just makes it hard to comment on issues that might affect our membership when we don't know what's going to be discussed until a minute before the meeting," said teachers association President Ed Yarusinski. "I think it's wrong that an agenda isn't provided to the public in advance of the meeting."

Legally, the board is not required to release any meeting information in advance, said Tom Cafferty, an attorney who represents the New Jersey Press Association. As long as an agenda is incomplete, it is not considered a public document.

A bill pending in the state Senate, S-1351, would have public bodies post agendas in newspapers and online three business days before a meeting. The bill was introduced in February and referred to a subcommittee.

Getting information out before a meeting could also help improve the image of a board, Paff said, especially as it makes unpopular cuts.

"I don't think they recognize the damage they do to their own credibility" by not releasing a meeting plan, he said. "Then they wonder why nobody trusts them ... or assumes the worst."

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

Supreme Court rules on suit filed by speaker gaveled down during public comment period

In a decision released May 17, 2010, the New Jersey Supreme Court ruled that a Board of Education President, who silenced a citizen who was speaking during a meeting's public portion for no reason other than the unpopular viewpoint he expressed, could subject the Board to damages for violating the speaker's First Amendment rights.

But, the Court held that the plaintiff was not entitled to the $100,000 he received in damages arising out of being silenced because the "emotional distress" he claimed to have suffered was not proven to be anything more than minimal mental anguish or fleeting embarrassment.

Five of the seven justices sent the case back to the trial court for reconsideration of the damages. Two of the seven said that the plaintiff should get no damages and that the trial court should not even consider the question.

The decision, Philip A. Besler, et al. v. Board of Education of West Windsor-Plainsboro Regional School District, et al., Docket A-81-08, is on-line here.

Saturday, May 15, 2010

Rotation of a local government agency's auditor

Following is a letter I sent to my local Board of Fire Commissioners after learning that it has had the same firm auditing its books for at least seventeen years. My thought is that readers might like to write a similar letter to other municipal government bodies, school boards, fire districts, etc. that have "permanent" auditors.

The Comptroller's report, referenced in and enclosed with my letter below, is on-line here.

John Paff
Somerset, New Jersey

Dear Chairman Hajdu-Nemeth and Members of the Board:

On September 25, 2009, I participated in the New Jersey Foundation for Open Government’s Open Government Symposium in Trenton. The Symposium's keynote speaker was New Jersey Comptroller Matthew Boxer.

During his presentation, Mr. Boxer spoke about how some public bodies keep using the same firms to audit their books year after year. He said that this is not a good practice because "permanent" auditors become complacent when they realize that nobody—other than themselves—are going to review their work the following year. He also said that there's a tendency for "permanent" auditors to not ask too many hard questions out of fear of not being hired for the following year.

When I visited your office yesterday to pick up a CD that I had requested, I asked Administrative Aide Debi Nelson how many years that the Hodulik & Morrison accounting firm has been doing the Fire District's audit. Her response was "ever since I began working here--17 years ago."

Enclosed is a copy of Mr. Boxer's August 2008 report entitled "Selection and Use of Audit Firms by New Jersey Government Units." As you can see, the New Jersey Comptroller's Office has recommended that "[i]n no event should a government unit use the same audit form for more than ten consecutive years."

Mr. Boxer's office also recommends that government units "should procure their auditor using a competitive selection process at a minimum of every five years." My understanding is that the District presently engages in a non-competitive process and simply passes a resolution, year after year, appointing the Hodulik & Morrison firm.

I believe that the Board of Fire Commissioners ought to pass a resolution that would formally adopt the New Jersey Comptroller's recommendations starting next year. Would the Board list this proposal as a discussion item on its May 24, 2010 meeting agenda?

Thank you for your attention to this matter.

Friday, May 14, 2010

Appellate Division resolves OPRA's copy cost issue

In a published decision released on February 11, 2010, the Appellate Division held that the Open Public Records Act (OPRA) does not allow record custodians to charge more than their actual copying costs. Recognizing that OPRA's language on the issue of copy costs was confusing, the court ruled that custodians must start charging their "actual costs" effective July 1, 2010 and that a) if the costs, as determined by the custodian, are not more than OPRA's 75c/50c/25c per page schedule, the burden will be on the requestor to prove that the costs are too high and b) if the determined costs are more than the 75c/50c/25c schedule, the burden will be on the government agency to prove that the costs assessed reflect its actual costs.

The court stated that its decision was the best it could do in harmonizing OPRA's confusing and contradictory language. It invited the legislature to amend the statute prior to July 1st if it actually intended a different result.

The decision is on-line here.

Wednesday, May 12, 2010

Process for appealing denial of access to court records

New Jersey's Judicial branch of government, including municipal courts, are not subject to the Open Public Records Act (OPRA). See Giacoboni v. Superior Court of New Jersey, GRC Complaint No. 2003-126 here.

Access to court records is governed by an October 12, 2005 directive entitled "New Jersey Judiciary Open Records: Policies and Procedures for Access to Case-Related Court Records." That directive, which includes forms for making requests and establishes appeal procedures, is on-line here.

An example of a successful appeal is on-line here. At issue was the Bridgeton (Cumberland County) Municipal Court's improper redaction of defendant addresses from summons/complaint forms that I had requested. On April 5, 2010, I appealed Bridgeton's redactions to Carole A. Cummings, the Municipal Court Division Manager for Cumberland, Salem and Gloucester Counties. On May 7, 2010, Cummings ruled that Bridgeton is required to give me summons/complaint forms that contain the defendants' addresses.

Important OPRA decision

On May 10, 2010, the Superior Court, Appellate Division issued a published opinion in the case of David Burnett v. County of Gloucester. The opinion is available on-line here. Since it's a published opinion, it is binding precedent.

The requestor has asked the County for "any and all settlement agreements, releases or similar documents entered into, approved or accepted from 01/01/2006 to [March 14, 2008]"

The Appellate Division made two holdings:

1. The fact that the requestor asked for settlement agreements and releases falling within a certain date range instead of specifying the lawsuits to which the settlements pertained did not impermissibly require the custodian to conduct "research." The Court held that "it is the documents, themselves, that have been requested, and their retrieval requires a search, not research." This clarifies and limits the Appellate Division's 2005 ruling in MAG Entertainment, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534.

2. The fact that some of the settlement agreement that were responsive to the request were held by other parties, such as insurance carriers and outside lawyers, did not relieve the County of its obligation of retrieve them for the requestor. This clarifies and limits the Appellate Division's 2005 ruling in Bent v. Township of Stafford Police Department, 381 N.J. Super. 30.

John Paff
Somerset, New Jersey

Monday, May 3, 2010

Lesson learned: Don't refer to outside sources in OPRA requests.

On March 2, 2009, I submitted an OPRA request to the Borough of Lawnside (Camden County) in order to determine whether or not the Lawnside Police Department's Internal Affairs Unit was following the Attorney General's rules and regulations regarding internal affairs functions. The request contained five paragraphs, each defining a type of record that I wanted.

Lawnside promptly acknowledged my request and asked for a 10-day extension, which I agreed to. Then, the Borough stopped communicating with me despite several attempts to get the Borough Clerk to act on my request. Finally, on May 7, 2009--more than two months after my request was made--I filed a complaint against Lawnside with the Government Records Council (GRC). Richard Gutman represented me in the GRC and all the documents from my GRC complaint are on-line here.

After my complaint was filed, Lawnside provided me with records responsive to the first of the five paragraphs in my request and informed me that no records existed that were responsive to the other four paragraphs.

On April 29, 2010, the GRC, in ruling on my complaint, held that the Borough violated OPRA by failing to provide me with the records responsive to the first paragraph of my request until after I had filed a complaint. The GRC ruled that this made me a "prevailing party" who was entitled recover attorney fees from Lawnside.

But, disturbingly, the GRC also held that the second through fifth paragraphs of my request were not proper because they "require the Custodian to perform some type of research in order to identify any records responsive" to the request. (Findings and Recommendations, p. 10.) Since OPRA does not require custodians to conduct research, the GRC held that "the Custodian has not unlawfully denied access to the requested records." (Findings and Recommendations, p. 12.)

An example of one category of records to which I was denied access was:

"Any rule which 'requires an officer or employee to notify the agency if he or she has been charged with an offense, received a motor vehicle summons, or have been involved in a domestic violence incident' as recommended at the bottom of page 11-24 of the Attorney General’s Manual."

I felt (and still feel) that this request clearly identified the record I sought. Basically, I a) informed Lawnside that the New Jersey Attorney General recommended that each local police department adopt a rule requiring their police officers to notify the department if the officers are charged with an offense, receive a traffic ticket or are involved in a domestic violence incident and b) asked for a copy of the rule if it had indeed been adopted. In case there was any confusion, I provided Lawnside with a link to the Attorney General's Manual where the recommendation was made. (That manual is on-line here. )

Although I believe that my request was clear, the GRC ruled that the request required Lawnside's Custodian "to conduct research in said manual to determine which records, if any, are required to be created and maintained by the police department." (Findings and Recommendations, p. 11.)

It appears that my request's reference to an outside source, i.e. the Attorney General's Internal Affairs Policy Manual, is what made it fall into the GRC's impermissible "needs research" category. Apparently, had I simply requested "any rule which requires Lawnside police officers to notify the Lawnside Police Department whenever they are charged with an offense, receive a motor vehicle summons, or are involved in a domestic violence incident," the GRC might have found it to be a proper request.

The GRC's logic in this case is confusing. Suppose I asked Lawnside for "any juvenile curfew ordinance currently in effect." I think that the GRC would find that to be a valid request.

But, suppose my OPRA request instead stated:

"N.J.S.A. 40:48-2.52(b)(1) authorizes every New Jersey municipality 'to enact an ordinance making it unlawful for a juvenile of any age under 18 years within the discretion of the municipality to be on any public street or in a public place between the hours of 10:00 p.m. and 6:00 a.m.' unless certain conditions apply. I would like a copy of any such ordinance currently in effect in Lawnside."

Would the GRC rule that my request, since it referred to curfew ordinance's authorizing legislation, was improper because it required "research"?

I would understand the GRC's position better had I requested, for instance, "any rule that the Lawnside Police adopted based on the recommendation at the bottom of page 11-24 of the Attorney General’s Internal Affairs Policies and Procedures Manual." Clearly, such a request would be onerous because it would require the Borough Clerk to consult the Attorney General's Manual to learn what was recommended on that page.

But, when a request is clear and can be responded to without making reference to an outside source, the fact that the request also refers to an outside source should not invalidate it. In my case, the request contained enough information to allow the Clerk to respond to it without having to consult the Attorney General's manual.

The lesson I've learned is that if I intend to ask the GRC to enforce an OPRA denial, I should refrain from referring to any statute, rule or other document in my request, even if I believe that the reference will clarify my request and make it easier to understand.

Another lesson that could be taken from this experience is to look for future OPRA enforcement in the Superior Court instead of the GRC.

John Paff
Somerset, New Jersey

Saturday, May 1, 2010

Interesting Friday in Judge Brock's courtroom

Update: July 27, 2010: The 130-page transcript of the April 30, 2010 hearing is on-line here.

As previously announced, my Attorney Rick Gutman and I appeared before the Hon. Kathryn A. Brock at the Union County Courthouse on Friday, April 30th, to argue entitlement to a surveillance video that reportedly showed former Garwood Police Officer (and brother of a Union County Freeholder) Gennaro J. Mirabella entering the locked office of Garwood's Chief Financial Officer and opening her desk drawers. The hearing lasted nearly three hours.

We lost on our Open Public Records Act claim because Judge Brock held that the tape is exempt a) as a "criminal investigative record" and b) because disclosure may improperly reveal security measures and surveillance techniques.

In order to bolster its "security measures" claim, Garwood had submitted an unsigned certification by its Police Chief, William Leg, which stated: ". . . the Borough's safe, in which important records and other materials are kept, is depicted in the video. This is something which, if disclosed, would also jeopardize the security of the building and create a risk to safety." During argument, Garwood's attorney, Robert F. Renaud, suggested that the video would show a criminal the exact location of the Borough's safe, thereby allowing the miscreant to bore a hole in the municipal building's roof directly over the safe to allow for its easy extraction. (Legg's certification is on page 67 of the PDF file here.)

After losing the OPRA claims, Mr. Gutman proceeded to explain why the public's interest in viewing the recording was greater than Garwood's interest in keeping it confidential. If we could prove this, we would get the tape under the common law right to access records, even if we were not able to get it under OPRA.

It was at this point that Mr. Renaud informed Judge Brock that he had with him a copy of the recording and portable DVD player and would show it to her in chambers if she wished. After she initially declined, Mr. Renaud again made his offer and this time she accepted. Mr. Gutman said that he wanted to view the video too, and his request was allowed provided that he promised not to disclose to me or anyone else what the video contained. Judge Brock and the two lawyers then went into the back room to watch the video and emerged a few minutes later.

The conversation that then took place between the judge and the lawyers made it clear that the Borough's safe, which Chief Legg claimed to have been visible on the video, was NOT visible on video. Instead, according to Judge Brock, the video showed Officer Mirabella enter the office, open a door to a closet or an adjoining room, look through and then close that door, walk to a desk and open its drawers and then leave the room. The door that Mirabella opened was apparently visible on the video but the camera was positioned such that one could not see into the room that was behind the door.

I will quote Mr. Renauld's explanation as to why Chief Legg stated that the safe was visible on the video as best as I can remember: "Even though you can't see the safe itself, I know that there is a safe behind the door that Mirabella opened, Chief Legg knows that there's a safe there and the Clerk knows that there's a safe there." Judge Brock responded "But, I would have never known there was a safe behind that door unless you had told me."

The hearing then wrapped up pretty quickly. While we still lost on our OPRA claim (although Judge Brock, after seeing the video, probably reversed her position on the "security measures" issue, she had still found the video exempt as a criminal investigatory record), she was not prepared to make a determination on our common law access claim. She seemed impressed with Mr. Gutman's argument that the public has a great interest in viewing a video showing wrongdoing by a uniformed police officer, especially in light of the public controversy that arose after it was learned that the officer is a Union County Freeholder's brother, that the charges against him were dropped and that he was allowed to resign in good standing.

Judge Brock scheduled another hearing for June 11, 2010 at which time she will consider our common law claim and whether the fact that Mr. Mirabella had the charges expunged from his record has any impact on our entitlement to the video. She ordered that Mr. Mirabella be given notice of this hearing so that he can enter into the action to assert any privacy interests that he might have.

Judge Brock's April 30, 2010 Case Management Order has been posted on-line here.