Saturday, November 13, 2010

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On November 4, 2010, Bergen County Superior Court Judge Joseph S. Conte issued an unpublished decision in O'Brien v. Woodcliff Lake, et al, Docket No. BER-L-2091-10.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.

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