Saturday, March 27, 2010

OPRA case to be heard in Union County on April 16, 2010

An Open Public Records Act (OPRA) case that was filed on March 16, 2010 will be heard on Friday, April 16, 2010, 9 a.m., by Hon. Kathryn A. Brock at the Union County Courthouse, 2 Broad St, Elizabeth, New Jersey.

At issue is my request for a surveillance tape that reportedly shows former Garwood Police Officer Gennaro J. Mirabella entering the locked office of Garwood's Chief Financial Officer and opening her desk drawers. Garwood Borough denied access to the tape claiming it "is a criminal investigatory record . . . for which disclosure may jeopardize security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software or both.” Richard Gutman, Esq. of Montclair is representing me in this case.

The lawsuit papers are on-line here and the public and media are invited to observe the April 16th hearing. Those who wish to observe should call the court at 908-659-4774 the day prior to hearing to confirm that it hasn't been postponed. Refer to Paff v. Borough of Garwood, Docket No. UNN-L-1089-10.

The incident underlying my request is politically charged because Officer Mirabella, who is the brother of Union County Freeholder Alexander Mirabella, was not convicted of any charges arising out of the incident in the CFO's office or another incident where he was caught on video shoving paper into laundromat dollar bill changers in an apparent attempt to jam them. Rather, the disorderly persons offenses brought against Mirabella were dismissed and Mirabella entered into a deal with Garwood Borough in which he would be allowed to resign in good standing. For more information on this matter and a video of Mirabella in the laundromat can click here.

Thursday, March 25, 2010

Mantua Committee closed meeting practice criticized

On March 26, 2010, I wrote to the Mantua Township (Gloucester County) Committee expressing concerns that the Committee discussed matters privately on July 20, 2009 that the Open Public Meetings Act required to be discussed in public.

My letter to the Committee is on-line here.

Tuesday, March 23, 2010

Mantua Committee requested to adopt lawsuit disclosure ordinance

On August 5, 2009, the insurer for Mantua Township (Gloucester County), paid $10,000 to an Arab-American man who sued the Township alleging that a Mantua police officer harassed him due to his ethnicity. I blogged the settlement here.

I then began to wonder whether a) a reasonably alert Mantua citizen, absent my blog entry, would have learned about the settlement and b) whether Mantua had any mechanism in place to make sure that their elected Committee members were informed of lawsuit settlements.

Accordingly, I submitted an OPRA request to the Township seeking, among other things, the following four records. (I have placed Mantua's response beneath each of the four requests, and the original OPRA request and the Township's response is on-line here.)

1. Any resolution that authorized, informed or otherwise mentioned the $10,000 settlement agreement with Mohammed Ahmad Kobeissi.

Response: There is no resolution created for this purpose.

2. If there are no records responsive to No. 1, then the pages from any public meeting at which the $10,000 settlement agreement with Mohammed Ahmad Kobeissi is referred to.

Response: At no public meetings of the Township Committee of the Township was this referred to.

3. The pages from any nonpublic (executive session) meeting minutes where the $10,000 settlement agreement with Mohammed Ahmad Kobeissi was discussed.

Response: This matter was not discussed at any closed session of the Township Committee of the Township of Mantua.

4. Any correspondence from the insurer to the Township regarding the $10,000 settlement agreement with Mohammed Ahmad Kobeissi.

Response: Please find correspondence filed with my office in regards to the settlement. (Note: the "correspondence" consisted of nothing more than a copy of the two-page August 5, 2009 settlement agreement.)

According to the Township's response, it is reasonable to conclude that a member of the public, even if he or she dutifully attended every public Committee meeting and read the minutes of every executive session, would not have been informed of this settlement, and presumably any other settlement that the Township's insurer entered into. It is also reasonable to suggest that there is no procedure in place to inform the members of the Township Committee of lawsuit settlements.

I believe that this problem is not limited to Mantua Township but exists in many--perhaps most--municipalities, school boards and other public bodies throughout the state.

Information on settlements and other dispositions of lawsuits is of public importance because it allows elected officials and citizens to judge the reasonableness of public officials' actions and to detect patterns of wrongful behavior by particular government officials and employees.

For example, suppose a given police officer was sued three times for excessive force and the Township's insurer pays a settlement on each suit. Had the Township Committee known about the first suit and settlement, it could have taken steps to more closely monitor the officer and perhaps avoid the incidents from which the second and third lawsuits arose. If, however, the public and elected officials were not informed of these three hypothetical lawsuits and settlements, it is much more likely that the police officer's conduct would escape any scrutiny.

Accordingly, I have sent a letter to the Mantua Township Committee, which is on-line here, asking it to adopt an ordinance that will require lawsuit settlements to be reported on at the following public meeting.

I recommend that interested readers learn whether or not their municipalities and school boards routinely report lawsuit dispositions to the public. If those bodies do not publicly report, I recommend that they be asked to pass the ordinance described in the previous paragraph.

John Paff
Somerset, New Jersey

Wednesday, March 17, 2010

Public officials' use of personal e-mail addresses

One problem that I frequently encounter is public officials' use of personal e-mail addresses (such as JohnDoe@Yahoo.com) instead of official e-mail addresses (such as JohnDoe@CityOfVineland.org) for official correspondence. Since e-mails that are send and received by private e-mail servers are not typically retained by government agencies, production of those e-mails in response to future OPRA requests may be difficult if not impossible to fulfill, especially if the officials who sent or received them have since passed away, moved out of town, etc.

In order to identify and correct this problem, I typically submit an OPRA request to an agency for a few random e-mails. For example, I might ask a municipality for "the first six e-mails regarding municipal business that were sent or received by Councilman John Doe after January 10, 2010 at 7 a.m." When I receive the responsive e-mails, I can see if the municipal officials who sent or received them used their personal or official e-mail addresses.

When I find that officials are communicating official business by way of personal e-mail addresses, I send them a letter inviting them to adopt a policy requiring the use of official e-mail addresses. Often I am successful in this effort, as evidenced by my recent correspondence with the Lopatcong Board of Education (Warren County) which is on-line here.

Sometimes, however, my efforts are not successful, as in the case of Haddon Heights Borough (Camden County) where Mayor Scott Alexander, who uses a personal Comcast.net e-mail address, informed me that "as a matter of practice, I do not store sent emails." Even though Mayor Scott's practice most likely violates New Jersey's records retention laws and regulations, there is no straightforward way to have those laws and regulations enforced. My OPRA request to Haddon Heights and the Borough's response is on-line at here.

Tuesday, March 16, 2010

Do meeting minutes need to contain a synopsis of public comments?

I sometimes receive questions that I think may be of general interest.

QUESTION:


Usually several people address my Township Council during the portion of its meetings set aside for public comment. Yet, nothing of what these people say is captured in the minutes. While I don't expect a verbatim report of the comments, I would expect something to the effect of "Mrs. Jones commented on the proposed raise of ..." or "Mrs. Jones inquired about ....". The minutes do not even capture the fact that Mrs. Jones spoke at the public session. Is this lawful?
ANSWER:

N.J.S.A. 10:4-14 require public bodies to keep "reasonably comprehensible minutes" of its meetings. Unfortunately, there is no published case law addressing the question of whether recording the identities of public speakers and substance of what they said is within the definition of "reasonably comprehensible."

The only New Jersey case that I know of where this question was addressed is O'Shea v. West Milford Township Council, et al, (Passaic County, Docket No. L-2229-04, Passero, A.J.S.C.). Copies of the relevant case documents are available on-line here.

The second page of Judge Passero's order requires the sued public body to include within its meeting minutes "the person's name, address and a summary of the comments made." On pages 15 and 16 of the transcript (page 10 and 11 of the PDF file), Judge Passero explains why this information is important. "A summarization [in the minutes of what members of the public said is important] because it alerts the public as to the issues framed, or, for example, a board said, we had no notice of this. We had no knowledge of this. Here are the minutes where somebody said, I want to point out this, this, this. It also goes to notice. So make [the minutes] a little more comprehensible and you say [sic] stay out of court."

So, according to Judge Passero's reasoning, including a summary of what each member of the public said prevents the public body from later claiming that it had no knowledge of the issue. For example, if a member of the public, at the June 2, 2010 meeting, publicly complains of stop sign obscured by vegetation, and on September 4, 2010, there is a fatal accident caused by a motorist not being able see the obscured stop sign, it is important that the minutes of the June 2, 2010 meeting reflect that the body was on notice of but failed to correct the problem.

Judge Passero's ruling is an unpublished, trial court decision and is not binding precedent. However, it might persuade other courts to rule similarly. I suggest bringing the ruling to the attention of your public body and ask them whether they will act in accordance with Judge Passero's ruling even if they are not bound by it.

Tuesday, March 9, 2010

Question: Does notice of a special meeting need to published in the newspaper?

According to the case law, the rule is:

a) "Actual publication is not required," and

b) "When a public body sends meeting notices to newspapers for publication and, to the actual or readily ascertainable knowledge of that body, those newspapers cannot publish the notice at least 48 hours in advance of the meeting, there is no compliance with the Open Public Meetings Act."

So, in sum, public bodies have to take the newspapers' publication schedules and deadlines into account when announcing special meetings. But, if the newspapers are notified of a meeting in time so they COULD publish notice of it at least 48 hours prior to the meeting, the public body has complied with OPMA even if the newspapers don't actually publish the meeting notice.

Both a) and b) above are quotes from Worts v. Upper Township, 176 N.J.Super. 78 (Ch.1980). Although the Worts case is not binding precedent, the case has been cited by the Appellate Division with apparent approval. (See Township of Bernards v. State, Dept. Of Community Affairs, 233 N.J.Super. 1, 26, (App.Div.1989), certif. denied, 118 N.J. 194 (1989), and certif. denied, 118 N.J. 195 (1989))

Monday, March 8, 2010

New OPRA/OPMA lawsuit filed

On Friday, April 9, 2010, at 1:30 p.m. Judge William Nugent will conduct an Order to Show Cause hearing in Paff v. Oceanside Charter School, Docket No. ATL-L-854-10. The hearing, which is open to the public, will be held at the Atlantic County Civil Courthouse, 1201 Bacharach Blvd, Atlantic City. I am being represented by Richard M. Gutman, Esq. of Montclair.

At issue is whether a public school’s denial of access to executive (closed) meeting minutes describing the reasons that a corrupt school official was later fired violates the Open Public Meetings Act, (OPMA), the Open Public Records Act (OPRA) and/or the common law right of access to public records.

The Order to Show Cause, Verified Complaint and Brief are on-line here.

Friday, March 5, 2010

Appellate Division rules against OPRA requestor

In a March 5, 2010 published opinion, the Appellate Division ruled 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). Agencies rely upon these opinions, known as Administrative Agency Advice (AAA) letters, as interpretations of the statutes and regulations that the agencies apply and enforce. I am the plaintiff and appellant in the case, represented by Richard Gutman of Montclair.

The Appellate Division also ruled that the trial court erred by ordering the Attorney General's office to provide me with a list of AAA letters showing the date of the AAA, its docket number, the agency requesting it and the attorney who prepared it. Consequently, the trial court's award of Mr. Gutman's attorney fees was reversed since I was no longer the "prevailing party" in the suit.

The AAA letters are, in essence, a body of law that state agencies use to enforce statutes and regulations. We argued that the AAA letters were not made in professional confidence or in the course of an attorney-client relationship. We 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.

We 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, we 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."

The Appellate Division's opinion is on-line here. The briefs that were filed in the trial court are on-line here and the 162-page file that contains the exhibits before the trial court are on-line here.

Tuesday, March 2, 2010

Use of an agency's official OPRA request form

Even though Renna v. Union County was decided on May 21, 2009, I still get letters from record custodians around the state "requesting" that I use their agencies' official OPRA forms instead of the form that I generate on my word processor.

While it probably is not the best use of my time, I decided today to thoroughly explain to the Jersey City Clerk's office exactly why I won't complete its official form. For those who are interested, my request form and Jersey City's request form are on-line here and my explanation to the City Clerk's office is set forth below.

March 2, 2010

Sean J. Gallagher, Deputy City Clerk
City of Jersey City - via e-mail

Dear Ms. Gallagher

Thank you very much for your very prompt acknowledgement of my OPRA request.

I note that you sent me Jersey City's official request form and asked that I use it in the future. I decline to do so because the Appellate Division, on page 22 of its decision in Tina Renna v. County of Union, held that we "conclude that the form should be used, but no request for information should be rejected if such form is not used."

There are also other reasons why I prefer to use my own form.

1. Environmental and cost concerns.

I generate my form electronically by use of my word processor's mail merge function. I "print" my request forms as PDF files. If the custodian published his or her e-mail address on the agency's web site, I submit the PDF file by e-mail. If, such as in the case of Jersey City, the custodian does not publish his or her e-mail address on the web site, I transmit the PDF form through my fax software. In either case, I'm able to transmit the form to the custodian electronically without every having to print a piece of paper. This saves paper and toner. Also, on the issue of cost and the environment, please note that my OPRA request form is one page long, while Jersey City's form--with its Part A and B--is four pages long.

2. Forms that are non-compliant, cumbersome and confusing.

Jersey City's OPRA form, like most agencies' forms, doesn't appear to be very well thought out. For example, there is no place on the form for a requestor to put his or her fax number or e-mail address. Also, there is no place for the requestor to indicate whether he or she prefers to view the records in your office or whether he or she prefers to receive copies. Finally, if the requestor wants copies of the requested records, there is no place on your form for the manner of transmission (i.e. regular mail, fax or e-mail) to be expressed.

Also, it is confusing whether or not the requestor is supposed to sign the third page of the form. By signing the form before submitting it, the requestor certifies to three things. First, the requestor certifies that he or she "acknowledges receipt of a copy of this form with the date on which the information is expected to be available and the estimated cost." Second, the requestor certifies that he or she has "not been convicted of any indictable offense." Third, the requestor swears that he or she is "not seeking government records containing personal information pertaining to a victim or victim's family."

Without even getting into the merits of the second and third certification (i.e. perhaps people who have been convicted of indictable offenses should not be dissuaded from asking for meeting minutes, budgets and other records that do not contain victims' names), there is simply no way that anyone could legitimately certify, at the time of submitting a request form, that he or she had already received a copy of the form and been informed of "the date on which the information is expected to be available and the estimated cost."

So, when exactly is a requestor supposed to sign page 3 of the form? The only way I can make sense of it is that the requestor is supposed to submit the form without signature and wait for you to return the form with page 2 completed, which will inform the requestor of the date when the record will be ready and the estimated costs. Presumably, the requestor is then supposed to sign the form and return it to you. Do you agree that this is an unduly complicated process?

Finally, Jersey City's form does not comply with a decision of the Government Records Council. Page 3 of Jersey City's form states that "the term ‘government record’ . . . does not include . . .employee personnel files.” Yet, this form language was struck down by the Council in O’Shea v. West Milford, Complaint No. 2007-237. In O’Shea, the Council found that the form’s blanket statement that all “personnel files” are exempt, without informing the requestor that some “personnel files” were nonexempt, was “misinformation” that could "deter [some requestors] from submitting an OPRA request for certain personnel records." Although the Council made its ruling on May 28, 2008, Jersey City's form--nearly two years later--still contains the same "misinformation."

So, in sum, I decline to complete Jersey City's OPRA request form.

Very truly yours,

John Paff

Monday, March 1, 2010

School board ordered to pay record requestor's attorney fees

On February 23, 2010, the Government Records Council (GRC) ordered the Barrington Borough (Camden County) Board of Education to pay my attorney fees after finding that the Board improperly denied me access to public records. The GRC referred the case to the Office of Administrative Law for a determination of the amount of the attorney fee award.

On December 30, 2008, after learning that several female students had settled their sexual harassment lawsuit against the Barrington school district and one of its male teachers, I requested copies of the settlement agreements. On January 21, 2009, after my initial request went unanswered, I telephoned the District's business administrator and on the same day faxed her another copy of my request. After having not received any response, I left the business administrator a detailed voice-mail on February 4, 2009. On February 23, 2009, still having received no response, my attorney, Walter M. Luers of Oxford, filed an Denial of Access Complaint with the GRC.

In response to my complaint, the business administrator explained that she had delegated my request to the Interim Superintendent who had in turn delegated it to the school board's lawyer. The business administrator said that when she received my complaint she "realized that [the attorney] did not respond to the OPRA request as I had anticipated." She then undertook further investigation and learned that the school board's insurance carrier had the requested settlement agreements on file. On April 1, 2009, the business administrator provided me with the settlement agreements disclosing that the school district paid $200,000 to settle the girls' claims. (More information about the underlying sexual harassment lawsuit is on my blog here.)

The GRC decided that the custodian's handling of my request constituted a "deemed denial" because she did not properly respond to it within seven business days of its receipt. On the issue of attorney fees, the GRC held that since my complaint brought "about a change in the Custodian's conduct" that I was the prevailing party and am entitled to my attorney fees.

The GRC's decision, together with the complaint and other filings, are on-line here.