Thursday, September 30, 2010

OPRA case in Morristown tomorrow, Friday, October 1st

On October 1, 2010 at 9 a.m., Morris County Assignment Judge B. Theodore Bozonelis will hear argument in Paff v. Borough of Chatham, Docket No. MRS-L-1860-10. I am represented by Richard Gutman, Esq. of Montclair and the case documents are on-line here.

At issue is Chatham's denial of my request for records that would reveal the length of a former Borough police sergeant's suspension. As background, the newspapers reported that the sergeant, Roy George, allegedly left a backpack containing a loaded handgun on a Westfield sidewalk after a night of drinking. Even though Chatham disclosed the fact that George had been demoted and suspended and the reasons for the demotion and suspension, the Borough refused to grant access to records disclosing the length of George's suspension.

The public and media are invited to attend the hearing which will be held at the courthouse on Washington and Court Streets, Morristown. (I'm sorry for the late notice but it appeared until late today that the matter would be adjourned.)

Bergen court rules on OPRA and DARM's record retention schedules

On September 14, 2010, Bergen County Assignment Judge Peter E. Doyne issued a written opinion in North Jersey Media Group v. Bergen County Economic Development Corporation, Docket No. BER-L-6593-10. That opinion is available for download here.

The opinion, while "unpublished" (i.e. it creates no binding precedent), is very instructive, especially on the question of whether a public agency is legally required to establish a system to properly preserve e-mail records.

Judge Doyne ruled that the Destruction of Public Records Law doesn't create a private cause of action (i.e. a citizen cannot seek a civil penalty against a government agency or official who loses or destroys a record). But, he also ruled that since the defendant agency "has no guidelines for the retention of records" it shall "implement a policy to maintain and preserve records required by statutes and regulations."

Based on Judge Doyne's ruling, I believe that it is at least arguable that public agencies are under a ministerial duty to design a system that collects and archives official e-mails. Thus, if a citizen knows that municipal council members are sending and receiving official e-mails from their Yahoo, AOL, or GMail accounts and that there is no municipal policy requiring those e-mails to be preserved on the municipal server, I believe that citizen may be able to successfully bring an action in lieu of prerogative writs to compel the municipality to implement to establish such a policy. (For information on compelling a government agency or official to complete a ministerial task, see my blog entry "My town won't obey the law. What do I do?")

Friday, September 24, 2010

Neptune Twp Housing Authority fails to comply with "sunshine" laws

On September 24, 2010, I wrote to the Neptune Township Housing Authority complaining that the Authority's Board of Commissioners is not in compliance with the Open Public Records Act (OPRA) and the Senator Byron M. Baer Open Public Meetings Act (OPMA). Among the issues complained of: a) the Authority charging an excessive amount for copies of public records, b) the Authority's failure to respond to a request for executive session minutes and c) the Authority's failure to adequately inform the public of the topics that will discussed during non-public (i.e., "executive" or "closed") session. My letter and attachments are on-line here.

Some of the exhibits to my letter are legal services invoices submitted to the Authority by Bart J. Cook, Esq. of Asbury Park. Unlike many attorneys who charge their governmental clients for only the services performed, Mr. Cook bills the authority an $1,125 monthly "retainer" in addition to $150 per hour for legal work performed.

Thursday, September 23, 2010

How do I request records when I don't know what records exist?

Sometimes I get questions from readers that I think may be of general interest. Here is one such question and my response to it.

Question:


The county in which I reside owns and operates a miniature golf course. The Freeholder Director claims that the course is making money and doing well, but I'm not so sure. When I attempted to OPRA the golf course's income and expense records from the County, I am told that the records I seek do not exist, that the county is under no responsibility to create records for me or that my request is too broad. Since I don't know the records that the county keeps and how it arranges them, it is difficult if not impossible for me to request them. What do I do?

Answer:

Unfortunately, some government agencies take advantage of requestors by forcing them to play a game of blind man's bluff. It's a frustrating problem.

I've had some success with the form of request that is set forth below. As you can see, it contains a preemptive "background" element explaining: a) the requestor's goal in making the request, b) that the requestor doesn't (and shouldn't be expected to) know exactly which records would help him or her reach that goal, and c) reminding the agency that OPRA intends for records custodians and requestors to cooperate with one another.

The receiving agency, or its attorney, usually realize that anything less than a full and cooperative response to such a candid request will likely be viewed by a Superior Court judge or the Government Records Council as being evasive and mean-spirited.

John Paff, Chair
New Jersey Libertarian Party's
Open Government Advocacy Project

Background:

The Freeholder Director recently said that the the county's miniature golf course is doing well and making money. I would like to test the veracity of that claim by examining the records of the golf course's income and expenses. I don't know which records the county keeps, so it's difficult for me--an ordinary citizen with no training in governmental accounting--to frame this request. Therefore, I am requesting the following, specific records. If the requested records are not available or are difficult for you to produce, I ask that you recommend which records I should request so that I can accomplish my goal of verifying the income and expenses related to the golf course in a manner that is least expensive and cumbersome for both me and the county. I remind you that the New Jersey Supreme Court has stated that the Open Public Records Act (OPRA) "is designed both to promote prompt access to government records and to encourage requestors and agencies to work together toward that end by accommodating one another." Mason v. City of Hoboken, 196 N.J. 51, 78 (2008).

Records requested:

I request these records pursuant to both OPRA and the common law right of access.

For the period beginning July 1, 2009 and ending June 30, 2010:

1. Statements or other writings that show the amount of income received that is attributable to the golf course.

2. Purchase orders evidencing any moneys, except salaries and insurance, disbursed on account of the golf course.

3. Any record that discloses the amount of insurance premium attributable to the golf course.

4. Wage and salary records for any employees whose work is exclusively for the golf course.

5. Wage and salary records for any employees whose work is partially for the golf course.

Tuesday, September 14, 2010

My town won't obey the law. What do I do?

Sometimes I get questions that I think might be of general interest. Here's one such question and my answer to it.

QUESTION:

My municipal government does not obey the law and does not care that it does not obey the law. For example, state law, specifically N.J.S.A. 40A:9-139, requires each municipality to pass an ordinance providing for the appointment of a municipal attorney. Despite this law, my town doesn't have such an ordinance and refuses to enact one. My complaints to the Attorney General, County Prosecutor and various state agencies haven't helped and I don't have money to hire an attorney. What can I do?

ANSWER:

You could consider filing a lawsuit pro se, i.e. without a lawyer. That's what Frank Bright, an activist in New Brunswick, did in 2003 when the Mayor refused to appoint citizens to certain boards and committees even though he was directed to do so by a municipal ordinance. Bright won his lawsuit and his victory was reported in the media (See, e.g. "City told to put people on nonexistent panels," by Sharon Waters, Home News and Tribune, February 27, 2004).

If the law compels a public official or agency to perform a ministerial act (i.e. an act that the official or agency doesn't have the discretion not to perform), the court can order the agency or official to perform the act. And, the way one goes about applying to the court for such an order is to file a suit "In Lieu of Prerogative Writ of Mandamus."

In Bright's case, the Court ruled that although the Mayor had discretion to choose who would serve on the various boards and committees, he was required by law to appoint somebody. In your case, it appears that you could similarly sue your governing body and the court should require them to enact the required ordinance.

Several years ago, I obtained a copy of Bright's lawsuit paperwork from the courts, and have now posted those records on-line here in order to show exactly how Bright worded his suit, how New Brunswick responded, how Bright replied to the City's response and how the Court ruled. Readers will note that the the judge originally decided to not make New Brunswick reimburse Bright for his court costs but later changed his mind. So, in the end, Bright succeeded in making the City of New Brunswick follow the law and got all his court costs paid by the City.

I feel compelled to include some sort of disclaimer admonishing readers that filing a lawsuit is serious business and that they should contact an attorney, etc. While that is true, I also believe that there are times when citizens who can't afford a lawyer to correct official neglect or wrongdoing need to stand up for their rights. So, do your research and file a pro se suit only if you believe it's lawful and justified.

Wednesday, September 8, 2010

Pittsgrove school board quizzed on its executive session minutes

On September 9, 2010, I wrote to the Pittsgrove Township Board of Education asking if would take more robust and comprehensible minutes of its nonpublic (closed or executive) meeting. My complaint is that the Board, which sometime meets in private for hours, often boils the substance of those meetings down to two or three vague sentences in the meeting minutes. This deprives the public, as well as present and future Board members, from understanding what was said and done during these private meetings.

My letter to the Board is on-line here and resolutions and minutes from three recent Board executive meetings are on-line here.

Readers interested in this issue are urged to attend the Board September 16, 2010 meeting and ask the Board to publicly comment on my September 9, 2010 letter.