Thursday, August 5, 2010

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.

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