Saturday, November 27, 2010

Gloucester Twp meeting minutes "cannot be located."

On November 16, 2010, I requested minutes from five Gloucester Township(Camden County) Council closed (i.e. executive) sessions from as recently as April 7, 2008. On November 24, 2010, I was informed by Clerk Rosemary DiJosie that the requested minutes "were not and cannot be furnished to anyone as they cannot be located."

According to State record retention schedules, meeting minutes are required to be retained permanently. Accordingly, the Township is in violation of the State's requirements.

According to DiJosie's letter, I was "previously informed by letter dated July 10, 2008 from Gloucester Township Solicitor David Carlamere [that] measures have been put in place to better preserve Closed Session minutes." While this is technically true, that letter was in response to my June 30, 2008 complaint to the Mayor and Council that the Council's closed meeting minutes lacked specificity. I was not aware until very recently that the Clerk's office simply "cannot locate" minutes at all.

DiJosie's November 24, 2010 letter, Carlamere's July 10, 2008 letter and my June 30, 2008 complaint are on-line here.

Wednesday, November 24, 2010

Court to hear South Bound Brook public records suit

On July 27, 2010, I informed readers of my lawsuit against the Borough of South Bound Brook (Somerset County) seeking disclosure of records of a police investigation involving the "Mayor's wife's family." Background on the matter and a copy of the lawsuit are on my blog here.

My attorney, Walter Luers of Oxford, has recently filed a motion for summary judgment. For those who are not familiar, summary judgment motions are filed whenever a party believes that there are no significant facts in dispute and all that is required is for the court to apply the law to the case. Our motion, along with a legal brief, certification and exhibits is on-line here.

There should be a hearing on our summary judgment motion at 9 a.m. on Friday, December 17th before Hon. Yolanda Ciccone, A.J.S.C. at the courthouse at 20 N. Bridge St, Somerville. The public is invited to attend the hearing, but should call 908-231-7068 the day before to ensure that it has not been postponed. Refer to Paff v. Borough of South Bound Brook, Docket No. SOM-L-1212-10.

Tuesday, November 23, 2010

OPRA lawsuit to determine amount of cash seized by police

On September 8, 2010, I read a newspaper article informing me that a drug arrest was made after a motor vehicle stop in Readington Township (Hunterdon County) on September 2, 2010 and that a "large amount of U.S. Currency" was seized from the arrestee's vehicle. This prompted me to file a records request to determine exactly how much currency was seized.

(Note: I became interested in cash seizures in Readington after learning that the Readington Police, along with the Hunterdon County Prosecutor's Office and the State Attorney General Office, split $100,000 seized from a vehicle despite a later finding that the search that resulted in the seizure was unconstitutional. For more information, click here.)

Readington, however, refused to provide me with any records disclosing the exact amount of currency seized. The Township claimed that disclosing the amount might compromise a criminal investigation.

With Richard Gutman of Montclair as my attorney, I filed suit against the Township on October 12, 2010. The suit is on-line here.

The matter is scheduled to be heard on Tuesday, January 18, 2011, 9 a.m. before Hon. Yolanda Ciccone, A.J.S.C. at the courthouse at 20 N. Bridge St, Somerville. The public is invited to attend the hearing, but should call 908-231-7068 the day before to ensure that it has not been postponed. Refer to Paff v. Township of Readington, Docket No. HNT-L-673-10.

Sunday, November 21, 2010

DEP proposes new OPRA rules

The New Jersey Department of Environmental Protection (DEP) has proposed new rules exempting certain categories of records from public disclosure. Those proposed rules are on-line here.

OPRA attorney Richard M. Gutman of Montclair has submitted written comments to the proposed rules which are on-line here.

Any citizen who wishes may, prior to February 4, 2011, submit comments regarding the proposed rules. Citizen comments and the DEP's responses will be published in the New Jersey Register.

Comments may be mailed to:

Alice A. Previte, Esq.
Attention: DEP Docket Number 11-10-11
Office of Legal Affairs
P.O. Box 402
Trenton, N.J. 08625-0402

Or, comments may be faxed to 609-984-3488.

Saturday, November 13, 2010

Court awards attorney fees on common law right of access claim

Update: The holding in the following case has been reversed.  Click here for more information.

On November 10, 2010, in what appears to be the first case of its kind, Union County Superior Court Judge Kathryn A. Brock ruled that a record requestor who obtained records under the common law right of access, but not under the Open Public Records Act (OPRA), is entitled to his or her attorney fees.

The case is John Paff v. Borough of Garwood, Docket No. UNN-L-1089-10. At issue was a request for a police surveillance video that depicted Garwood Police Officer Gennaro Mirabella, while in uniform, trespassing in the Garwood Borough offices. In a July 13, 2010 opinion, Judge Brock found that Paff was not entitled to the video under OPRA but was entitled to it under the common law right of access. For background and case documents, click here.

After entry of the July 13, 2010 order, Paff's attorney, Richard M. Gutman of Montclair, filed an application for costs and attorney fees. He asserted that the New Jersey Supreme Court, in Mason v. Hoboken, 196 N.J. 51 (2008), created a new right to attorney fees in common law access cases. Brock agreed and awarded Gutman $40,288.50 in attorney fees and a "fee enhancement" of $14,100.98. She also awarded the cost of a $1,381.40 transcript and $260 in court filing fees for a total of $56,030.88. Garwood was represented in the case by Robert F. Renaud of Cranford.

Brock found that although "there simply have not been any published decisions since the Court's decision in [Mason v. Hoboken] where the plaintiff filed claims for access under OPRA and the common law, but only prevailed on the common law claim . . . the authority to make the award is clear under [Mason] and under the catalyst theory this plaintiff is entitled to a reasonable counsel fee as the prevailing party on his common law claim under the facts of this case."

Judge Brock found that $350 per hour was a reasonable fee for Mr. Gutman's services but reduced Gutman's request to be paid for 141.88 hours to 115.11 hours.

Judge Brock also ruled that Gutman was entitled to an extra 35% because of the risk he took in not getting paid at all if the suit was unsuccessful. Brock agreed with Gutman that his chance of losing the suit was high, given that Garwood refused to provide him and Paff with "more specific information about the basis for the OPRA exemptions being relied upon" and because Garwood had raised a security concern by falsely claiming that the Borough's safe was shown on the video. On the latter point, she found that "if the court had not viewed the DVD and concluded that [Garwood's claimed] security exemption did not apply . . . the plaintiff's claim under the common law right of access might well have been lost . . ."

Gutman's fee application and the Borough's opposition are on-line here. Judge Brock's order and thirty-seven page decision is on-line here.

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.

LPS proposes new OPRA rules

The New Jersey Department of Law and Public Safety has proposed new rules exempting certain categories of records from public disclosure. Those proposed rules are on-line here.

OPRA attorney Richard M. Gutman of Montclair has submitted written comments to the proposed rules which are on-line here.

Any citizen who wishes may, prior to December 31, 2010, submit comments regarding the proposed rules. Citizen comments and the LPS's responses will be published in the New Jersey Register.

Comments may be mailed to:

Philip H. Hopkins, Jr., Deputy Attorney General
Administrative Practice Officer
Department of Law and Public Safety
Office of the Attorney General
P. O. Box 081
Trenton, NJ 08625-0081

Comment letters should refer to "Proposal Number: PRN 2010-269."

DCA proposes new OPRA rules

The New Jersey Department of Community Affairs (DCA) has proposed new rules governing how it responds to records requests and exempting certain categories of records from public disclosure. Those proposed rules are on-line here.

OPRA attorney Richard M. Gutman of Montclair has submitted written comments to the proposed rules, and the text of those comments is on-line here.

Any citizen who wishes may, prior to December 31, 2010, submit comments regarding the proposed rules. Citizen comments and the DCA's responses will be published in the New Jersey Register.

Comments may be mailed or faxed to:

Michael L. Ticktin, Esq.
Chief, Legislative Analysis
Department of Community Affairs
PO Box 802
Trenton, NJ 08625
Fax No. (609) 633-6729.

Comment letters should refer to "Proposal Number: PRN 2010-266."

Monday, November 1, 2010

Records suit filed against the City of Brigantine

On August 3, 2010, I sent an open letter to Brigantine Mayor Philip J. Guenther and the City Council seeking access to a settlement agreement that a member of the city's police administration reached with the City and an employee who accused him of sexual harassment. My letter is on-line here.

Since the City did not respond to my letter, I filed suit against Brigantine on September 14, 2010. The suit seeks access to the settlement agreement under three legal theories: a) the Open Public records Act (OPRA), b) the common law right of access, and c) the Local Fiscal Affairs Law. I am being represented by Richard Gutman, Esq. of Montclair.

My suit seeks the settlement agreement with the name of the alleged sexual harassment victim redacted from it. I have no interest in knowing or publicizing the name of the alleged victim. I am, however, interested in publicizing the name of the alleged harasser and the terms of the settlement agreement.

Documents from the lawsuit, which is captioned Paff v. City of Brigantine, Docket No. ATL-L-5038-10, are available on-line here.

The matter is scheduled to be heard on November 18, 2010 at 11:30 a.m. by the Hon. Nelson C. Johnson in Atlantic City. Due to a scheduling conflict, however, the matter is almost certainly going to be postponed until December 14, 2010 or December 16, 2010. I will notify readers when a new date and hour is set.