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.

Saturday, June 5, 2010

Appellate Division: Rules that were proposed but not enacted do not create OPRA exemptions.

Back in 2002, when OPRA was enacted, Governor McGreevey issued an executive order which, in part, allowed state agencies to deny access to records that were exempted by administrative rules that had been proposed but had not yet been adopted.

In 2008, the Government Records Council (GRC) held that rules that were proposed by state agencies as far back as 2002 but never enacted still constitute a lawful basis for denying OPRA requests. On June 4, 2010, the Appellate Division reversed the GRC's decision.

The court said that it could "perceive no basis for this kind of expansive interpretation" of McGreevey's executive order. Rather, the court ruled that McGreevey's executive order "was only intended to establish a stopgap exemption from disclosure during the interim period between the effective date of OPRA and the adoption by State agencies of proposed rules that would establish such exemptions" permanently.

The Appellate Division delayed implementing its decision under November 5, 2010, apparently to give state agencies an opportunity to enact rules that will restrict public access to their records.

The Appellate Division's decision and the GRC decision that it overturned are on-line here.

Tuesday, June 1, 2010

Putting a date on a records request form

(Sometimes, in reviewing my records, I find issues that arose before I created this blog that may have some present value. Here is one such issue.)


On May 23, 2008, I submitted a records request form to the Springfield Board of Education but, due to an oversight, I forgot to write the date on the form. Today, I received a telephone call from the Board's office telling me, ultimately, that they will not fulfill my request unless and until I write the date on it.

I was taken aback by this, and repeated back to the woman that "Let me get this straight, you're not going to provide me with the records unless I resubmit the same request after writing the date on it." To which the woman replied "Yes. That's correct."

Part of me said "What's the big deal? Just date the form and get on with life." But, another part of me couldn't let it go that easily. If anyone is interested in seeing the letter I mailed to the Superintendent, it's on-line here.