Friday, December 30, 2011

A custodian's duty to properly explain redactions

Sometimes, records custodians redact (i.e. black out) information from a document but don't say why the matter is redacted.  This makes it impossible to determine whether the redaction is reasonable and was legally done.

Since I experience the same problems with many different custodians, I find it useful to maintain boilerplate language that I can cut and paste into my letters to those custodians. Here's some boilerplate language that I use when objecting to an OPRA response that does not sufficiently explain why certain matters were redacted.

Dear Custodian:

I am receipt of your correspondence of [date] which accompanied the redacted [describe record].

In your correspondence, you stated that the reason for the redaction was that the redacted text was "privileged." For the reasons stated below, I believe that simply stating "privileged" does not comply with the Open Public Records Act (OPRA). Accordingly, I consider this request still open and offer you an extension until [date] to provide me with either unredacted (or more narrowly redacted) responsive records and/or an explanation that properly justifies any redactions that you feel are legitimate.

OPRA, specifically N.J.S.A. 47:1A-5(g), requires records custodians, when denying access to a record in whole or part, to inform the requestor of “the specific basis” for the denial. Beyond stating the “specific basis” for each suppression, the custodian is required to “produce specific reliable evidence sufficient to meet a statutorily recognized basis for confidentiality.” Courier News v. Hunterdon County Prosecutor’s Office, 358 N.J. Super. 373, 382-83 (App. Div. 2003). Further, he or she must explain each suppression in a manner that “without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.” Paff v. New Jersey Department of Labor, Board of Review, 379 N.J. Super. 346, 354-55 (2005) (quoting R. 4:10-2(e)) (emphasis in original).  More recently, the Appellate Division reaffirmed its commitment to this principle in Burke v. Brandes, 429 N.J. Super. 169, 178 (App. Div. 2012).

These cases prescribe how custodians are to explain and justify the redactions they make to records and are legaly binding. I have no desire to burden your agency's taxpayers with the costs of a lawsuit. Rather, I write to encourage you (with the help of your agency's attorney) to reconsider the way you've explained the redactions you made to the records I requested. Please let me know the results of your review by the extension date set forth above.


Tuesday, December 27, 2011

Audits need a close look

Local government agencies and authorities are required to audit their books annually, and one might think that these audits are sufficient to ensure that everything is on the up and up. But the audits merely point out financial reporting deficiencies--sometimes the same deficiencies year after year--and the agency or authority that paid for the audit may elect to take no corrective action.

A case in point is the Borough of Dunellen's (Middlesex County) Parking Authority. While reviewing the auditor's August 30, 2010 cover letter that accompanied the Authority's 2008 and 2009 audits, I was struck by the following sentence: "Because of the inadequacy of accounting system and records for the year ended December 31, 2008, we are unable to form an opinion regarding the amounts at which accounts receivable, accounts payable and deferred parking permit revenues are recorded/not recorded on the balance sheet or accompanying financial statements. The respective amounts are unknown." I felt that this sentence was significant because it said, in essence, that the Parking Authority, which reported $631,305 in net assets and had $124,798 in cash and equivalents on hand as of December 31, 2009, didn't properly record and account for its income during 2008.

I reported my concerns to the Division of Local Government Services (DLGS) within the Department of Community Affairs. The DLGS, after reviewing its records, learned that the Authority's record keeping deficiencies were not restricted to 2008 but spanned several years. In a November 29, 2011 letter, the DLGS noted that the Authority, for several years, had insufficient controls "surrounding the monitoring of parking permit fees and parking meter collections and proof of collections." Also, the DLGS noted that the Authority had ignored its auditors warnings that "the same person may collect, record, deposit, disburse, analyze and/or reconcile cash and investment activity within the Finance Office and Authority operations."

In sum, it appears that the Parking Authority, which takes in a significant amount of cash from parking meters and through parking permit sales, established an environment where officials could have pilfered that cash without it being known that any cash was missing. Of course, I do not know that any actual theft took place, but the conditions were such that money could have been stolen without detection.

After having allowed these deficiencies to exist, I believe that, at the very least, the Parking Commissioners who were at the helm during this period should not be rewarded with reappointment. Accordingly, I have written to the Mayor and Council recommending that different individuals be appointed to those seats. That letter is on-line here. It will be interesting to see whether the Borough Council heeds my recommendation.

In conclusion, don't assume that an annual audit safeguards the public fisc. Rather, take the time to read the audits carefully to determine whether public money is being properly maintained.

Monday, December 19, 2011

School board member cleared of ethics charges for taping executive session

In a September 28, 2011 decision, the New Jersey School Ethics Commission held that a Winslow Township (Camden County) Board of Education member did not violate the Code of Ethics for School Board Members by audio-taping a board executive session "without asking permission to do so" and by not informing his fellow Board members "of his intentions prior to taking action."

The Commission found that merely taping an executive session, without more, did not have "the potential to compromise the Board." Given that "[t]here [was] no claim that the [school board member] took action to make public, reveal or disclose information that was not public . . . the Commission [found[ that the complaint, on its face, fail[ed] to allege facts sufficient to maintain a claim that the [board member] violated the [Code of Ethics]."

The decision is on-line here.

Tuesday, November 29, 2011

Comparing municipal attorneys' billings in multiple towns

Many attorneys represent more than one government agency. As an experiment, I selected two townships in Cumberland County that are represented by the same lawyer and OPRAed the legal invoices from both. I then compared them side by side and looked for instances in which attorney billed both townships for more hours than seemed reasonable for a single day.

What I found was that the law firm, which I believe employs one attorney, charged the townships a total of $2,175 for 14.5 hours spent attending two court hearings on March 30, 2011. The details are in my letter to both Mayors, which is on-line here.

Clearly, there may be, and probably is, a logical explanation for these billings, but I believe that questioning them is reasonable. If your local agency's attorney works for multiple towns, you may wish to try an experiment similar to mine. I believe that citizens questioning attorney bills will cause government attorneys to be very careful in their billing practices.

Monday, November 28, 2011

OPRA suit filed against State Firemen's Association

On November 22, 2011, Montclair attorney Richard Gutman filed an Open Public Records Act (OPRA) lawsuit on my behalf against the New Jersey State Firemen's Association (NJSFA). The civil complaint, as well as an order to show cause and brief in Paff v. New Jersey State Firemen's Association, Docket No. UNN-L-4371-11, are on-line here.

Although it received over $24 million in tax dollars during 2010 and distributed over $11 million of that amount to its 538 local firemen's relief associations, most members of the public know little or nothing about the NJSFA. The NJSFA receives a percentage of taxes New Jersey levies against out-of-state insurance companies. With that money, it provides for the care of indigent, injured and deceased firefighters. The NJSFA and its local relief associations serve over 76,000 career and volunteer firefighters.

On September 26, 2011, I filed an OPRA request with the NJSFA. Among other records, I asked for documents revealing how much, if any, past members of the NJSFA's Executive Committee were receiving in pension benefits. In its response to my OPRA request, the NJSFA stated that it "has never considered itself bound by the [Open Public Records] Act." Accordingly, my request for the pension records was denied.

Mr. Gutman and I disagree with the NJSFA's position and believe that it is an OPRA "public agency" because it was created by the New Jersey Legislature or by municipal fire departments back in the 1800's. Either way, we believe that it's a "public agency" under OPRA because, as stated in N.J.S.A. 47:1A-1.1, it was "created by the Legislative Branch" or it was "created by a . . . combination of political subdivisions [of the State]."

The matter has been set down for a hearing on January 6, 2012 at 9 a.m. before Union County Superior Court Judge Regina Caulfield at 2 Broad Street, Elizabeth. The hearing is open to the public, but interested citizens should call the court at 908-659-4810 the day before the hearing to make sure that it hasn't been postponed.

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

Saturday, November 19, 2011

Paff v. Runnemede school board: Motion hearing December 16th

Update: The September 25, 2012 Consent Judgment that resolved the Open Public Meetings Act component of the lawsuit is on-line here and the correspondence referred to in paragraph 3 of the Consent Judgment is here. Also on-line are Judge Kelley's Order of December 16, 2011, his Order of May 30, 2012, the closed session minutes that were ultimately release, and the Board's letter to Judge Kelley regarding the minutes.
Readers may recall that attorney Walter M. Luers and I filed a lawsuit in June against the Runnemede (Camden County) Board of Education in an attempt to learn exactly why the board gave former Business Administrator Kelly Brazelton a leave of absence from September 23, 2010 through April 15, 2011 while paying her a $99,465 annual salary. According to media reports at the time, the arrangement was made in order to stave off a lawsuit that Brazelton had apparently threatened to file. Brazelton has since been hired as assistant business administrator in the Deptford (Gloucester County) School District. The lawsuit is on-line here and the school board's and Brazelton's answer to the suit is on-line here.

Walter and I recently moved for summary judgment on the first count of our lawsuit. Summary judgment can be entered by a court when there are no serious factual disputes and that all that is needed is for a judge to apply the law to the undisputed facts of the case. The motion will be heard in Camden County Superior Court on Friday, December 16, 2011. Our motion, certification and brief are on-line here.

Specifically, we are asking the court to order the board to provide a "privilege log" which explains and justifies each redaction it made to the minutes of its nonpublic (i.e. closed or executive) meetings held during the period when Brazelton's leave of absence was being considered. Unfortunately, the board redacted its minutes but gave only vague reasons for those redactions. We are also asking the court to order the board to file unredacted versions of its nonpublic meeting minutes with the court so that a judge can look at them privately (i.e. conduct an in camera review) to determine whether the redactions are proper.

Members of public are welcome to attend the December 16, 2011 hearing on our motion. It will be held at the Camden County Courthouse, probably at 9 a.m before Assignment Judge Francis J. Orlando, Jr. Those who are interested in attending should check the court's website a day or so before the hearing to ensure that it hasn't been postponed or cancelled. Refer to Paff v. Runnemede Board of Education, Camden County, Docket No. L-2865-11.

Tuesday, November 15, 2011

OPMA Lawsuit against Camden City school board

A new lawsuit was filed yesterday in Camden County Superior Court that seeks answers to the following questions:

1. How promptly must a public body publicly disclose the nonexempt portions of its nonpublic (i.e. "closed or executive") meeting minutes?

2. Can a public body validly claim that it must first "approve" its nonpublic meeting minutes prior to publicly disclosing even redacted versions of them?

3. Must a public body pass a separate, free-standing resolution in order to authorize a nonpublic session (as required by N.J.S.A. 10:4-13) or is it sufficient for it to pass a motion, which is recorded in the regular meeting minutes?

4. In its N.J.S.A. 10:4-13 motions or resolutions, how specifically must a public body describe the topics it plans to discuss during its nonpublic meetings?

5. In its N.J.S.A. 10:4-13 motions or resolutions, how precisely must a public body state the time when and the circumstances under which the discussion conducted in nonpublic session can be disclosed to the public?

The lawsuit is the joint effort of Camden resident Jose Delgado and me. We're seeking a court order that will bring some clarity to these questions. We plan on bringing the suit's result to the attention of every public body in Camden County. This, we hope, will help establish a legal standard that all those bodies will follow.

Click links for the civil lawsuit and brief.

Thursday, November 10, 2011

Did Northfield Police give break to drunk-driving cop?

Update:  Judge Julio L. Mendez issued his ruling in the case, on-line here.
Update:  Judge Julio L. Mendez, after receiving the in camera documents from Egg Harbor, has scheduled oral argument for Thursday, October 18th at 1:30 p.m. at the Atlantic County Civil Courthouse in Atlantic City.  Motion paperwork is on-line here.

On September 29, 2011, Clinton attorney Walter M. Luers filed a lawsuit on my behalf against two Atlantic County municipalities and their police officials seeking disclosure of records pertaining to a curious traffic stop during the early morning hours of February 17, 2011. A copy of that lawsuit is on-line here and a November 10, 2011 Press of Atlantic City article about it is on-line here.

Records I requested reveal that at 2:04 a.m., Northfield City Police observed a black Mercedes sitting at a traffic light while the light went through multiple rotations. Police initially reported that they had difficulty waking the driver and getting him to "open up" the car's door. There were also recorded conversations indicating that the driver was "A.O.B." (which, in police-speak, means "alcohol on breath.")

Later, after Northfield Police determined that the driver was Jeffrey Lancaster, an off-duty Egg Harbor Township police officer, they apparently tried to sanitize their radio communications by saying that Lancaster was "definitely sound asleep" but "no A.O.B." and attributed Defendant Lancaster falling sound asleep behind the wheel at two o'clock in the morning to "moonlighting." Even though Defendant Lancaster was purportedly not drunk, Northfield Police inexplicably asked for Egg Harbor Police Sergeant Michael Hughes to report to the scene to "give [Lancaster] a ride home."

My subsequent records request caused Egg Harbor Township police to admit that they investigated the incident and disciplined Lancaster for violating "several departmental rules and regulations." Yet, the police refused to provide me with access to any of the investigation's records or a report that Sergeant Hughes filed regarding the incident.

Thursday, October 20, 2011

OPRA response "The prosecutor said we couldn't release it"

Have you ever made an Open Public Records Act (OPRA) request for local police records only to be told, "We asked the county prosecutor about your request and he or she said that we must deny it."? If the prosecutor really did say that, then he or she violated a 2006 consent order entered in the case of Deborah Jacobs v. Peter C. Harvey, et al, Docket No. L-3119-04.

I learned about this consent order after Walter Luers and I recently filed a lawsuit in Camden County. One of the defendants, the Borough of Gibbsboro, claimed that they couldn't release a police record because the county prosecutor told them not to. After we sued both Gibbsboro and the Camden County Prosecutor, the prosecutor informed us of the consent order.

Paragraph 1 of that consent order, which is available on-line here states that in "applying the standards set forth in OPRA and any other applicable law, each municipality shall exercise its own discretion in determining whether to release documents sought through OPRA." According to the Camden Prosecutor's brief, which is also available at the link, ever since the consent order was entered, they have "expressly refrained from providing direction or legal advice to municipalities on OPRA issues, other than to suggest how the Prosecutor's Office might respond if a request was made to its OPRA Coordinator."

So, if a local clerk or police department tells you that they can't release records because of advice given by the prosecutor, send them a copy of the consent order and tell them to seek advice from the municipal lawyer.

Wednesday, October 12, 2011

OPMA case filed in Gloucester County

On October 6, 2011, an Open Public Meetings Act (OPMA) case was filed in Gloucester County Superior Court. Cheryl Potter, a local resident, brought the suit against each member of the Elk Township Committee. Potter is being represented by John W. Trimble, Jr., Esq. of Trimble & Armano of Turnersville.

In her verified complaint, Potter alleges that the Township Committee discussed topics during its April 19, 2010, May 18, 2010 and April 12. 2011 closed session that ought to have been discussed in public. Potter's suit seeks "an injunction prohibiting Defendants from any future violations of the OPMA by discussing budget matters in closed session." She also seeks the court's in camera review of all minutes, transcripts and audio or video recordings of Township Committee closed sessions held during 2010 and 2011.

The verified complaint in the case, Potter v. Pantaleo et al, Docket No. GLO-L-1739-11, is on-line here. An order to show cause hearing should be scheduled soon.

Hearing this Friday: Curious incident involving Voorhees Police

On the evening of December 30, 2009, several alarmed citizens called 911 to report that a civilian female was beating up a uniformed Voorhees police officer who was in his patrol car in the Borough of Gibbsboro (Camden County). The audio of those phone calls, as well as police communications regarding this incident are on-line here.

Further investigation revealed that the officer allegedly being beaten was Voorhees Police Officer Richard Taylor and that alleged female assailant was his wife Tracy Taylor. After the incident, Gibbsboro Patrolman Ryan E. Marrlow filed simple assault charges against Ms. Taylor. Those charges were later dismissed.

I heard rumors that a) Officer Taylor had violated police regulations by conducting personal business in Gibbsboro immediately prior to the incident instead of being on duty in Voorhees and b) officials in both Gibbsboro and Voorhees may have not properly investigated Taylor's conduct regarding this incident. In order to test the veracity of this information, I requested records from Gibbsboro, Voorhees and Camden County.

Not surprisingly, I was denied access to many of the records I sought including a) the radio transmission that Officer Taylor made during or immediately after the incident, b) Taylor's "shift log" showing his activity immediately prior to and after the incident, c) mobile data transmissions between other Voorhees police regarding the incident and d) the incident report prepared by Gibbsboro Police.

OPRA attorney Walter Luers filed a lawsuit on my behalf against Voorhees Township and Gibbsboro Borough as well as members of the Camden County Prosecutor's Office and Officer Taylor and his wife. (Paff v. Borough of Gibbsboro, et al, Docket No. CAM-L-4044-11)

The matter is set down for an Order to Show Cause hearing on Friday, October 14, 2011 at 9 a.m., before Camden County Assignment Judge Francis J. Orlando at 101 South 5th Avenue, Camden.

Voorhees, Gibbsboro, the Camden County Prosecutor's Office and the Taylors have all filed opposition to my suit. My lawsuit, the opposition and all other related paperwork is on-line here.

The public and media are welcome to come and observe this suit. Anyone wishing to attend should call Judge Orlando's office at 856-379-2355 on Thursday afternoon to verify that the hearing has not been adjourned.

Saturday, October 1, 2011

Runnemede school board apologizes for gaffe

According to an "Important Notice" on its website, the Runnemede (Camden County) Board of Education "inadvertently published on its website" an unredacted version of its May 10, 2011 executive session minutes. The minutes, which have since been removed from the Board's website, were the subject of my September 29, 2011 post entitled "Do two OPRA requests constitute harassment?" The minutes are available on-line here.

The text of the "Important Notice" is set forth below and is available at the Board's site as well as here.






Friday, September 30, 2011

Do two OPRA requests constitute harassment?

At the May 10, 2011 Runnemede (Camden County) Board of Education executive session, Board Attorney Philip E. Stern, Esq. said that he would contact me and another citizen "requesting that [we] cease and desist [filing OPRA requests] under possible charges of harassment." The minutes of the closed meeting, which I learned about just today, are available on the Board's site as well as here.

According to the minutes, I and two other citizens were filing Open Public Records Act (OPRA) requests "in an effort to find some information to support [a] suspicion . . . that some fraud or unethical events occurred." Board attorney Phillip Stern opined that "the volume and nature [of the OPRA requests] has been expanding and interferes with the ability to administer the district."

I confess that I am guilty as charged. I filed two OPRA requests with the Board--on April 7, 2011 and May 7, 2011--in an attempt to find out why the Board entered into a settlement agreement with its former business administrator and gave her a seven-month paid leave of absence at her annual salary of $99,465. The Board's responses to my two OPRA requests resulted in my June 3, 2011 lawsuit against the Board: That lawsuit is on-line here.

For unknown reasons, Stern never followed through on his promise to send me a "cease and desist" letter.

Wednesday, September 14, 2011

Gloucester Prosecutor issues guidelines on public officials' e-mail usage

On September 13, 2011, Gloucester County Prosecutor Sean F. Dalton sent a memorandum to every municipality in the county "strongly urging" them to "adopt an e-mail policy" for local government officials "in order to uphold the high levels of transparency contemplated by the Open Public Meetings Act (OPMA)."

The memorandum was issued in response to a February 19, 2011 complaint against the Borough of Pitman that Prosecutor Dalton received from the New Jersey Libertarian Party's Open Government Advocacy Project. The Project had complained that a majority of the Pitman Borough Council had "voted" via e-mail to pay a utility bill. Dalton found that "there is sufficient evidence to believe a violation of the OPMA took place" but felt that it was not "in the best interest of the public" for fines to be levied against the Pitman Council members who participated in the improper e-mail.

However, Dalton issued some guidelines, including not having an effective majority of a governing body included in a single e-mail and not conducting "rolling" e-mail communications (i.e. a series of e-mails on official business that eventually involve a majority of the body). Dalton's letter, memorandum and background material are on-line here.

This is the second instance this year where a county prosecutor has responded to the Open Government Advocacy Project's complaints regarding e-mail use by public officials. In an August 4, 2011 letter, Burlington County Prosecutor Robert D. Bernardi made findings similar to Dalton's regarding use of e-mail by Evesham Township Council members. That letter is on-line here.

Wednesday, August 31, 2011

Atlantic judge rules that DWI videotape is disclosable under OPRA

Not every New Jersey court decision is published in the law books. The vast majority of them are considered "unpublished opinions" and "shall not constitute precedent or be binding upon any court." See Court Rule 1:36-3. Even though they're not binding, these unpublished decisions can be persuasive to other courts.

One potentially useful unpublished decision was authored by Atlantic County Superior Court Judge Carol E. Higbee on March 3, 2011 in the case of Charles W. Cain, Jr. v. Township of Hamilton. That decision, which is five pages long, is on-line here.  The Burlington County case that is referred to in Judge Higbee's decision is covered by my blog entry here.

The Plaintiff, Charles W. Cain, Jr., was a local, elected official who had been arrested for driving under the influence (DWI) by Hamilton Township (Atlantic County) police. Cain's field sobriety test was captured on the police car's dashboard mounted camera and the daily newspaper--the Press of Atlantic City--submitted an Open Public Records Act (OPRA) request for the video recording.

When Cain learned that the Press has asked for the recording, he sued Hamilton Township in an attempt to block the recording's release. He argued that the recording was a "criminal investigatory record" and exempt from disclosure. Judge Higbee, however, found that since DWI is not a "crime," the "criminal investigatory record" exception did not apply.

Rather, Judge Higbee found that the only relevant OPRA exception was Hamilton Township's obligation to safeguard personal information to which a citizen has a reasonable expectation of privacy. This privacy exception required the court to balance the public's need for disclosure against Cain's need for privacy.

Judge Higbee found that since Cain was an elected official, Township voters have a legitimate interest in his conduct and his compliance with traffic laws. She found that the public's interest in disclosure exceeded Cain's interest in privacy and thus released the recording.

Cain appealed the ruling but, according to media reports, the Appellate Division declined to reverse it.

Friday, August 26, 2011

Somerset Freeholders revise their closed session policy

If your local government officials aren't doing what the Open Public Meetings Act (OPMA) requires, one way to get their attention is to threaten to sue them.

That's what I did on August 11, 2011 when I discovered that the Somerset County Freeholders were discussing matters in closed session that should have been discussed in public and were keeping closed meeting minutes that lacked enough detail for the public to understand what was discussed.

So that the Freeholders realized that I wasn't making idle threats, I drafted a civil lawsuit and e-mailed it to the Board advising them that unless I heard from them or their attorney by Friday, August 26, 2011 (i.e. three days after the Freeholder Board's August 23, 2011 meeting), I would file my lawsuit "without further notice."

On August 26, 2011, at 4:37 p.m., I received a letter from Somerset County Counsel William T. Cooper, III providing me with a list of five changes that the Freeholders pledged to make to bring them within OPMA compliance. Mr. Cooper's letter, along with my draft lawsuit, is on-line here.

This is a good outcome because I was able to get compliance without having to burden the taxpayers (and myself) with the cost of litigation.

And, although it sounds difficult and may seem a bit intimidating, it's not really very hard to file a lawsuit without an attorney. I've done it several times and have found that, in most all cases, the courts haven't been hostile to a non-lawyered citizen and have actually been quite accommodating and helpful.

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

Thursday, August 25, 2011

OPRA decision in Hudson County

Update: The judge's holding was upheld in all respects by the Appellate Division on August 15, 2012.  Click here for opinion.   But, an August 2017 opinion establishes that Superior Court judges are authorized to assess monetary penalties against records custodians and other government officials who knowingly, willfully and unreasonably violate OPRA.
One of the things that I try to do is identify and call activists' attention to court cases that construe and apply the Open Public Records Act (OPRA), the Open Public Meetings Act (OPRA) and the common law right of access. Sometimes, these case are filed and adjudicated without anyone noticing.

One such case is Comprelli v. Town of Harrison, Docket No. HUD-L-1179-10. The complaint, two court orders and two written opinions by Superior Court Judge Bernadette N. DeCastro are on-line here.

Here's a thumbnail sketch of the case. Plaintiff owns commuter parking lot in Harrison (Hudson County), New Jersey and asserts that city officials are harassing him by visiting his parking lots daily and counting the number of cars parked there. He submitted records requests to see, among other things, whether his competitors were enduring similar daily inspections. The Town denies his requests for not being on an official OPRA form and for being overly broad. Plaintiff, through his attorney, completes the Town's OPRA form and repeatedly amends and clarifies the request to make it specific as possible. Ultimately, the Town fails or refuses to grant access to the vast majority of the requested records and maintains that the request is overly broad and that pending litigation between the parties permits the records to be withheld.

In her May 4, 2010 opinion, Judge DeCastro determined "plaintiffs have sufficiently amended their requests in a manner which would not require [Harrison] to guess the information that plaintiff is requesting." See rejected the Town's claim that pending litigation was relevant to the request. She also found that to the extent that the Town denied access to public meeting minutes, it violated OPMA. Finally, she found that "the Town has not articulated any concern form confidentiality of the requested records, and as such, there is no basis to withhold these records from plaintiff under the common law."

Plaintiff asked for the court to impose OPRA's civil penalty against the Town's custodian. Judge DeCastro, citing the unpublished Appellate Division opinion in Hirsch v. City of Hoboken, determined that the Superior Court does not have jurisdiction to impose civil penalties.

In her August 26, 2010 opinion, Judge DeCastro found: a) that hourly rate of $450, which was increased to $520 effective January 1, 2010 by lead attorney Paul H. Schafhauser of Herrick, Feinstein LLP was "reasonable and customary;" b) the request was "not a proper request" until it was submitted on the proper form curiously, the Court cites Renna v. Union County in reaching thsi conclusion); c) plaintiff was granted attorney fees of $28,951.36 for work done between March 26, 2010 and July 31, 2010 and d) that plaintiffs is entitled to additional fees for work done after July 31, 2010. In a January 4, 2011 Order, Judge DeCastro ordered the Town to pay an additional amount of fees and costs of $14,687.00.

According to Harrison Town Clerk Paul Zarbetski, the fee award has been appealed and that the trial court has, on July 7, 2011, stayed payment of the fees pending appeal.

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

Wednesday, August 24, 2011

Galloway Township OPRA request

I sent the following records request to Galloway Township (Atlantic County). I appears that some deal regarding the Township Clerk was arranged behind closed doors and that the Township is seeking to keep the details away from the public.

The newspaper articles mention in the request are on-line here and here

John Paff

Please accept this e-mail as my request for government records in accordance with the Open Public Records Act (OPRA) and the common law right of access. Please respond and send all responsive documents to me via e-mail at If e-mail is not possible, please fax responses and responsive records to me at 908-325-0129. Also, I would appreciate it if you would acknowledge your receipt of this e-mail.


In an earlier request, I asked for minutes of the July 18, 2011 Township Council closed session. I asked for these minutes after readings two Patch articles ("Galloway Township Appoints New Clerk" on August 23, 2011 and "Lisa Tilton Resigns as Township Clerk as Part of Deal Reached Monday Night" on July 19, 2011). A copy of my request and the Township's response is on-line here.

From reading those article, I learned that outstanding disciplinary charges against Tilton would be dropped in exchange for her resigning effective October 3, 2011. In addition to paying Tilton $3,800 for her attorney fees, the agreement "called for all charges pending against her to be dismissed with prejudice and expunged in exchange for her resignation." She will also receive a "neutral reference . . . when contacted by potential employers, including to state she resigned in good standing." This deal was hammered out during a seven hour executive session from which Mayor Hartman recused himself part of the way through.

According to the resolution that authorized the July 18, 2011 closed meeting, there were two issues to be discussed privately: a) "Township Clerk" and b) Chief Financial Officer." According to the resolution, the discussion related to the Clerk would only be publicly revealed as follows: "If employee is terminated, redacted minutes may be available in 60 days. If employee is not terminated, only pursuant to Court Order." For the private discussion related to the CFO, the discussion, as recorded in the minutes, would be release "only pursuant to Court Order."

The July 19, 2011 Patch article indicates that both Tilton and Township Manager Steve Bonanni received Rice notices. And, Deputy Mayor Don Purdy is quoted as saying that the issues involving Tilton and Bonanni "were handled simultaneously because the issues were intertwined. “One had to do with the other,” Purdy said. “We had to talk about Steve because Lisa brought him into it.”

Yet, the July 18, 2011 closed session resolution doesn't mention any issue involving Bonanni that needed to be privately discussed, so it is confusing as to how his issues, whatever they are, were legitimately discussed in closed session.

From what I've read so far, it appears that there was some major controversy that was settled, with taxpayer money, of course, that the Township is now seeking to keep secret. I would like for you to remember that the taxpayers--the ones who are footing the bill for all this drama--have a right to know the real story as to what's going on so that they can determine whether the Mayor and Council acted wisely and appropriately in making this deal with Tilton. These taxpayers vote, and they need to have information on what really happened so that they are fully informed when they cast their votes. My intent is to get the records that reveal what really happened and post them on the Internet so that the voting public can review them.

If you review the South Jersey Publishing case that is cited in your resolution, you might come to the conclusion--as I have--that at the very least, redacted versions of the July 18, 2011 closed meeting should be disclosed. Your decision to completely suppress the minutes until October 3, 2011 "with approval from the Solicitor and Council" appears to be out of step with the South Jersey Publishing ruling.

Be advised that if you continue to withhold the information I seek, I will likely litigate this matter.

Records Requested:

1. Minutes of the July 18, 2011 closed Council meeting, redacted as narrowly as possible, if at all.

2. Rice notice sent to Tilton

3. Rice notice sent to Bonanni

4. Tilton's written response to Rice Notice, if any.

5. Bonanni's written response to Rice Notice, if any.

6. Settlement agreement with Tilton.

7. Disciplinary charges against Tilton, and her or her lawyer's written responses to those charges, redacted as narrowly as possible, if at all.

Thank you!

Monday, August 22, 2011

Friday, August 5, 2011

Bergen Judge orders officials to stop using personal e-mail accounts

In an August 4, 2011 decision, Bergen County Superior Assignment Court Judge Peter E. Doyne considered, among other issues, the question of public officials using private e-mails to discuss public business. Judge Doyne ultimately concluded that using personal e-mail accounts for public business "appears highly questionable" and "order[ed] counsel for [the municipality] to circulate a memorandum among all pertinent Borough employees directing they use only their public e-mail accounts, rather than private accounts, when conducting town business."

This is the first such holding of which I'm aware and it may be useful in convincing other government officials to sent official e-mail communications solely through their governmental e-mail accounts. Judge Doyne's decision is on-line here.

Many thanks to Kevin M. O'Brien, who filed and prosecuted this lawsuit without the aid of an attorney.

Burlco Prosecutor: Evesham official "unwittingly" violated Sunshine Act

In an August 4, 2011 letter to the attorney for the Eveham Township Council, Burlington County Prosecutor Robert D. Bernardi said that "Evesham Township officials did unwittingly run afoul of the prohibitions contained in the Open Public Meetings Act" by discussing public business by way of e-mail communications. Prosecutor Bernardi, however, declined to impose fines against the officials because that it was a not a "knowing" violation and that "educating public officials who may have mistakenly violated the provisions of the statute is far more effective than the imposition of nominal fines."

The prosecutor's letter, which is on-line here, was sent in response to a complaint filed by the New Jersey Libertarian Party's Open Government Advocacy Project.

Thursday, August 4, 2011

Collingswood defends practice of introducing ordinances that haven't yet been written

N.J.S.A. 40:49-2 specifies the procedure a municipality must follow to pass an ordinance. First, the governing body must introduce the ordinance at a public meeting (called a "first reading") and publish the fact that the ordinance was introduced. Second, not less a week after introduction, the proposal can be given a "second reading" at a public meeting, where after a public hearing, the governing body may vote to enact the ordinance.

The statute, however, presumably to save meeting time and publishing costs, does not require the municipality to read and publish the proposed ordinance in its entirety. Rather, the law allows the proposed ordinance to be read "by title" and published "by title" along with a "concise statement prepared by the clerk of the governing body setting forth the purpose of the ordinance, and the time and place when and where a copy of the ordinance can be obtained without cost by any member of the general public who wants a copy of the ordinance."

While this seems fairly clear, the Borough of Collingswood (Camden County) is interpreting the statute to permit the Borough to introduce ordinances that have not yet been reduced to writing.

According to a June 24, 2011 article by Brett Ainsworth of The Retrospect (, the Collingswood Board of Commissioners introduced "by title" an ordinance governing outdoor cafes at its Monday, June 20th meeting. On Wednesday, June 22nd, Ainsworth asked borough administrator Brad Stokes for the text of the cafe ordinance that had been formally introduced two days earlier. Stokes advise him that since the statute permits ordinances to be introduced by "title only," the Borough was allowed to formally introduce the ordinance even though it had not been written down. A July 1st article by Ainsworth attributes to Mayor Collingswood Mayor Jim Maley the position that "the practice of introducing measures without a completed written version has been done for years in the borough and is perfectly legal."

Tuesday, July 19, 2011

Serving as an appointed municipal official

One way to make a difference in your community is to serve as a member of a municipal board. In order to find out what boards have vacancies, submit the following OPRA request to your municipal clerk:

OPRA request

I would like the following government records in accordance with the Open Public Records Act (OPRA) and the common law right of access.

1. The municipality's up-to-date directory of local authorities, boards
and commissions, as required by N.J.S.A. 40A:9-9.2

2. The municipality's "Citizen Leadership Form" as required by the same

I submitted such a request to Penns Grove Borough in Salem County and the responsive documents are on-line here.

As you can see, the following vacancies currently exist in Penns Grove: two positions as Planning Board Alternate; one position on the Redevelopment Agency; two vacancies on the Recreation Board and one position on the Shade Tree Commission. Vacancies may also exist in your town.

Friday, July 15, 2011

No appointment needed to make OPRA request

In a July 12, 2011 letter, Government Records Council (GRC) Executive Director Catherine Starghill advised a South Jersey school district that it could not require records requestors to schedule an appointment before stopping by to make an Open Public Records Act (OPRA) request unless the district's enrollment does not exceed 500 pupils.

Starghill's letter was in response to a complaint from local activist John Schmidt who complained that he had stopped by the Gloucester City (Camden County) school district's offices on June 1, 2011 to make an OPRA request but was told that he needed to first schedule an appointment. In his letter, Schmidt pointed out that N.J.S.A. 47:1A-5(e) provides citizens with "immediate access . . . to budgets, bills, vouchers, contracts" and other records and that the district's policy of requiring people to first schedule an appointment unduly burdens that statutory right.

Starghill's and Schmidt's correspondence is on-line here.

Thursday, June 2, 2011

What if executive session minutes are heavily redacted due to "personnel issues" being discussed?

I recently requested executive session minutes from the Belmar Housing Authority. I believe that the minutes that I received, which are on-line here and my follow-up records request to the Housing Authority's records custodian (set forth below) might be helpful to others who confront the same problem.

If the follow-up request does not get me unredacted or properly redacted minutes, it will at least put me in a better position to file an action in Superior Court or the Government Records Council for disclosure of the minutes.

Please accept this e-mail as my request for government records in accordance with the Open Public Records Act (OPRA) and the common law right of access. Please respond and send all responsive documents to me via e-mail at If e-mail is not possible, please fax responses and responsive records to me at 908-325-0129. Also, I would appreciate it if you would acknowledge your receipt of this e-mail.


In response to a recent request, I recently received a two-page, handwritten set of minutes from a closed or executive meeting held in "June of 2010" by the Belmar Housing Authority. (I note that the minutes are undated, even though N.J.S.A. 10:4-14 requires minutes to contain "the time and place" of the meeting.) The minutes disclose that the meeting was called "to discuss raises for the three employees. Paul Caverly, Amy Spena, Bruce Petitt." But the entire substance of the minutes was redacted. In the record custodian's June 2, 2011 handwritten letter that accompanied the minutes, he noted that the minutes were redacted, but gave no reason for their redaction.

Although "personnel matters" such as employee raises, may be discussed by a public body in executive session (see N.J.S.A. 10:4-12b8), it does not necessarily follow that the minutes of such an executive session may be kept confidential. In South Jersey Publishing Company, Inc. v. New Jersey Expressway Authority, 124 N.J. 478 (1991), the New Jersey Supreme Court found that there was "no inconsistency between the exemption allowing personnel matters to be discussed and debated in executive session and the Act's mandate that adequate minutes of ALL meetings be available to the public." (Id. at 493, Emphasis in original). Rather, the Court held that "the exemption is designed to enable the public body to determine the appropriate action to be taken, not to withhold from the public either the public body's determination or the reasons on which its determination was based." So, on the current record, it is impossible for me to tell whether or not redaction of the entire substance of the "June of 2010" executive session is justified.

Request: Another copy of the "June of 2010" executive session minutes. This time, I would like them either unredacted or more narrowly redacted so that the maximum amount of information is revealed in accordance with the South Jersey Publishing Company decision cited above. For any elements of the minutes that you believe need to remain redacted, please recognize that when denying or redacting a record, N.J.S.A. 47:1A-5(g) requires a custodian to inform the requestor of the “specific basis” for each suppressed element. Beyond stating the “specific basis” for each suppressed element, the custodian is required to “produce specific reliable evidence sufficient to meet a statutorily recognized basis for confidentiality.” Courier News v. Hunterdon County Prosecutor’s Office, 358 N.J. Super. 373, 382-83 (App. Div. 2003). Further, he or she must explain each suppression in a manner that “will enable other parties to assess the applicability of the privilege or protection.” Paff v. New Jersey Department of Labor, Board of Review, 379 N.J. Super. 346, 354-55 (2005) (quoting R. 4:10-2(e)).

Wednesday, May 25, 2011

Citing statute as reason for redaction ruled insufficient

In a May 24, 2011 decision, the Government Records Council (GRC) held that that it is improper for a records custodian to simply cite a statute as its reason for suppressing or redacting a document. The GRC stated that "simply citing to a specific provision of a law would force a requestor to search out the law and identify those provisions that may apply. It is often possible that members of the New Jersey citizenry would have no knowledge of where to find a particular statute or be able to single out the exemption within the statute that authorizes a redaction." The case is Paff v. Teaneck Township, GRC Complaint No. 2010-09 and is available on-line here.

At issue was the Teaneck Township Council's October 28, 2008 executive session minutes. In response to my OPRA request, the Township provided me with the minutes with large blocks of text redacted. As an example, a large block of redacted text appeared after the heading "Compliance with the Manual on Uniform Traffic Control Devices." The only reason that the custodian gave for the redaction was "N.J.S.A. 10:4-12b7." (That page from the minutes is at page 33 of the PDF at the above link.)

The GRC said that "the Custodian should have included an explanation of each legal citation similar to how the Custodian set forth same in the document index submitted as part of the [Statement of Information] SOI." In its SOI, the Custodian gave the following reason for redacting the portion of the minutes dealing with Uniform Traffic Control Devices manual compliance: "Potential litigation and liability regarding installation of certain traffic control devises [sic] and attorney-client communications in connection therewith."

Comprehensive e-mail policy adopted

On May 23, 2011, the Franklin Township (Somerset County) Fire District No. 1 Board of Commissioners passed a comprehensive e-mail usage policy that might serve as a model for public bodies across New Jersey. The policy, which is on-line here, provides each elected and other Board official with a District e-mail account and requires officials to use that account for official business. Officials who receive official e-mails on their personal e-mail accounts are required to "immediately copy the e-mail together with all attachments to their official District e-mail address [and notify the sender] that all future correspondence and e-mails pertaining to [official business] must be sent to their official District e-mail address."

The policy also prohibits officials from using e-mail to "correspond back and forth with a majority of the Board of Commissioners . . . unless such e-mail is strictly informational in purpose." It also prohibits officials from attempting to "permanently delete any information or e-mails that are send to the District e-mail account."

Interested citizens may wish to forward the above link to their elected public bodies and request them to adopt a similar e-mail policy.

Tuesday, May 17, 2011

Citizen speakers prohibited by school board from duplicating others' comments

The public comment portion of a Mount Laurel Board of Education meeting (the date of the meeting is not known) is on YouTube here.

The comments are from students and parents praising and supporting certain teachers. By sliding the timer to 6:15, viewers will witness the board's determination that since the speakers are all making similar comments, future speakers will be ejected from the meeting unless the topics of their comments are "different" than what the board has already heard.

N.J.S.A. 10:4-12 requires school boards to provide a public portion during which citizens may speak about "any governmental or school district issue that a member of the public feels may be of concern to the residents of the municipality or school district." The same statute, however, allows school boards to "regulate the active participation of the public at any meeting."

I question whether the statute's grant of power to "regulate" public comment is broad enough to permit the board to censor comments that it perceives to be merely duplicative of prior comments.

I note that recently, a woman received an $8,000 settlement after the mayor of Cedar Grove Township denied her the right to speak. My blog on that case is here.

Friday, April 29, 2011

Hunterdon County's bank account levied upon for $93,265.37

On April 15, 2011, Hunterdon County Sheriff Corporal Sandra Ford delivered a writ of execution to the Wells Fargo Bank at 74 Church Street, Flemington and levied on Hunterdon's County's bank accounts. The levy amount, $93,265.37, represented legal fees that the County owes to the South Jersey law firm Friedman & Doherty, LLC of West Berlin.

The County was ordered to pay the $93,265.37 by Superior Court Assignment Judge Yolanda Ciccone's February 7, 2011 order that arose out of a class action lawsuit captioned James Gensch et al v. Mary H. Melfi, Hunterdon County Clerk et al, Docket No. HNT-L-307-07.

Gensch's lawsuit was a class action, filed on May 8, 2007, challenging the 25 cents per page charged by the self service copier machines located in the deeds and mortgages recording room. Gensch alleged that the 25 cents per page was too high and that the County was legally allowed to only collect its actual cost per copy, which Gensch estimated to be 7 cents.

The trial court dismissed Gensch's complaint on December 22, 2008 and Gensch appealed. The Appellate Division, on February 10, 2010, reversed and held that effective July 1, 1010, the County must reevaluate its actual costs and charge no more that its actual costs of producing a copy. According to the Appellate Division's decision, the number of copies purchased from the County's machines between May 2001 and August 2008 was 1,598,563 and, at 25 cents per page, the County collected $399,640.74 for providing copies of those pages.

On April 30, 2010, Gensch and the County entered into a consent judgment in which the County agreed to start charging seven cents per copy effective July 1, 2010.

Thereafter, Friedman & Doherty, Gensch's attorney, filed a motion seeking to require the County to pay Gensch's legal fees. According to filed papers, the firm sought $166,255.73 in fees plus a $12,000 award to Gensch. In a March 14, 2011 written opinion, Judge Ciccone started by considering Friedman & Doherty's request to be paid $350 per hour for 309.3 hours. After removing "unnecessary billings, billings for two attorneys where the task was reasonably allotted to a single attorney, duplicative work, or work which contributed to the litigation of similar cases in other counties," Judge Ciccone reduced the attorney fee award to $93,265.37 and denied Gensch his requested $12,000 award.

After the award of the attorney fees, the County moved for a stay of the attorney fee award so that the County could appeal the award to the Appellate Division. In its motion, the County argued that the County didn't have $93,265.37 in its budget and, like other local agencies, was under "extreme financial pressures" and "recently laid off nineteen (19) County employees in order to reduce its spending." The County's motion papers also noted that a judge in Hudson County had recently denied Friedman & Doherty attorney fees "on the exact same issue as this matter" and that the firm had appealed the Hudson County judge's order.

On March 23, 2011, the County filed its Notice of Appeal and on April 1, 2011, Judge Ciccone denied the County's motion for a stay.

Since nothing legally stood in the way of the February 7, 2011 order that awarded Friedman & Doherty its $93,265.37 in fees, the firm, on April 13, 2011, applied for a writ of execution, which was signed by Judge Ciccone. The writ was then given to the Hunterdon County Sheriff's office which effected the bank levy.

The County's lawyer in the Gensch matter is Michael A. DeSapio of Frenchtown. According to the most recent "Hunterdon County Legal Actions Report" on the County's Internet site, which is dated September 1, 2010, $65,769.82 had been paid to DeSapio's firm for representation. My Open Public Records Act request for DeSapio's bills show that the firm has billed the County for an additional $10,869.53 since the most recent "Hunterdon County Legal Actions Report" was prepared.

All of the relevant official documents used in the preparation of this article are on-line here.

How to audit a body for OPMA compliance

I am sometimes asked how I word my OPRA requests to public bodies that I wish to audit for compliance with the Open Public Meetings Act's closed session requirements.

I use the following form of request, since it is informs me of a) how current the body is on making its closed session minutes publicly disclosable, b) the level of detail contained in the body's closed session minutes, c) how closely the topics that the body resolved to discuss in closed session correspond to the topics that the body actually discussed in closed session, and d) the extent to which the body's closed session minutes are "reasonably comprehensible" as required by law.

To: Records Custodian

Please accept this e-mail as my request for government records in accordance with the Open Public Records Act (OPRA) and the common law right of access. Please respond to this inquiry via e-mail or by fax to [Fax No.].

1. The minutes of the [body's] three most recently held non-public (i.e. executive or closed) sessions for which minutes are publicly disclosable either in full or in a redacted version.

2. The resolutions, as required by N.J.S.A. 10:4-13, that authorized each nonpublic session for which minutes were furnished in response to #1 above.

3. The resolutions, as required by N.J.S.A. 10:4-13, that authorized the three most recently held nonpublic sessions, regardless of whether minutes for those closed sessions are publicly disclosable either in full or in a redacted version.

If the resolutions responsive to #2 and #3 above are spread out in full in the public meeting minutes, please send me only the pages that contain the text of the resolutions.

Friday, April 15, 2011

OPRA/OPMA hearing in Camden this Wednesday

Update: 06/21/11: City loses bid to restrict citizens' rights under OPRA, ordered to pay legal fees

On June 10, 2011, Camden County Superior Court Judge Frederick J. Schuck rejected Gloucester City's (Camden County) attempt to "control and regulate" the public records requests filed by two local men. In an April 12, 2011 counterclaim filed in response to John Schmidt's and Michael Walters' Open Public Records Act (OPRA) and Meetings Act suit, Gloucester City lawyer John B. Kearney argued that the men's filing of 154 OPRA requests during a three month period was a "campaign of harassment . . . motivated by a desire to dispute [sic] the normal efficient functioning of the municipal government and to harass the elected and appointed officials of the City."

After the men's lawyer, Walter M. Luers of Oxford, moved to dismiss the counterclaim on May 14, 2011, Kearney attempted to withdraw the City's counterclaim. In his June 3, 2011 letter to the Court, Kearney admitted that the "harassment count of the Counterclaim is not a cognizable cause of action in a civil court." Despite the letter, Judge Schuck dismissed the counterclaim and ordered the City to pay the legal fees the men incurred in moving for dismissal.

Judge Schuck's June 10, 2011 Order, the counterclaim and the City's attempt to withdraw the counterclaim are on-line here.

Update: On May 2, 2011, the Court issued an order resolving most of the issues in dispute. The order is on-line here. Among the matters resolved are:

1. Going forward, the school board's minutes must be "reasonably comprehensible" and identify the parties to all litigation and contractual negotiations discussed as well as the names of employees who were privately discussed. While the court agreed that in some cases, the names of the employees may be redacted from the minutes before they are made public, those names must be actually recorded in the minutes. This requirement was in response to the lawsuit's complaint that the school board would sum up hour long meetings in one word, such as "Retirement" or "Personnel."

2. Unless there is an emergency, the Gloucester City Council shall prepare its executive session and regular meeting minutes for approval at the next regularly scheduled meeting.

3. The City Council is prohibited, going forward, from discussing or acting on public business unless public notice requirements are obeyed.

4. The City Council will make an effort to approve its 2008 and 2009 executive session minutes and shall, on April 28, 2011, publicly disclose redacted versions of any such minutes that have not been approved.

At 8:30 a.m. on Wednesday, April 13, 2011, Judge Frederick J. Schuck, sitting in Camden, will hear oral argument in a lawsuit alleging that the City of Gloucester City committed several violations the Open Public Meetings Act (OPMA), the Open Public Records Act (OPRA) and the common law right of access to government records.

The lawsuit, Schmidt et al v. City of Gloucester City, et al, Docket No. CAM-L-1287-11 was filed on March 17, 2011 by Oxford, New Jersey attorney Walter M. Luers on behalf of Plaintiffs John P. Schmidt and Michael Walters, both of Gloucester City. In addition to the City, the lawsuit names the Gloucester City Board of Education, the City's Housing Authority as well as City Clerk Kathy Jentsch, Board of Education Business Administrator Margaret McDonnell and Housing Authority Records Custodian Sue McElhatton as defendants.

The lawsuit and other case documents are on-line here. (File is 7.1 Mb)

The complaint alleges a smorgasbord of OPRA and OPMA violations. The Plaintiffs claim that the Board of Education consistently goes into executive session without sufficiently identifying the topics to be discussed and recording minutes that are "uniformly uninformative." The City Council is accused of denying access to various meeting minutes, holding a secret, illegal meeting and failing to approve executive session minutes in a timely fashion. The Housing Authority is charged with refusing to release any of its 2010 executive session minutes, even in redacted form, and for overly-redacting its attorneys legal invoices.

One of the most serious allegations is that the Mayor, on January 1, 2011, invited all City Council members along with certain administrative officials to "a meting at the democrat club on Sunday at 1 p.m. for the sole purpose of finalizing committees for the upcoming year." Despite this being a meeting that ought to have been publicly advertised in accordance with the OPMA, the complaint alleged that "no public notice of that meeting was prepared or published [and] no minutes of the January 2, 2011 secret meeting have been kept."

Also of particular significance is the lawsuit's challenge to Board of Education minutes that sum up hour long meetings in one word, such as "Retirement" or "Personnel."

The media and public are invited to attend and observe Wednesday's hearing. It will be held at the Hall of Justice, 101 S. 5th Street, Camden. Those who wish to attend are advised to call Judge Schuck's chambers at 856-379-2380 or the Civil Division Manager's office at 856-379-2200 ext. 3070 the day prior to the hearing to verify that it hasn't been adjourned.

Gloucester City counterclaims against OPRA requestors

I previously posted information regarding the court case of Schmidt and Walters v. City of Gloucester City, et al, Docket No. CAM-L-1287-11, which alleges various violations of the Open Public Meetings Act (OPMA), the Open Public Records Act (OPRA) and the common law right of access to government records. The plaintiffs are being represented by Walter Luers, Esq. of Oxford, New Jersey.

On April 12, 2011, City of Gloucester City and Acting Clerk Kathy Jentsch filed a counterclaim against Plaintiffs John Schmidt and Michael Walters seeking a court declaration that "the actions of the plaintiffs constitute a substantial disruption under OPRA [and] harassment" and a directive "controlling and regulating plaintiffs [sic] OPRA requests [and] limiting plaintiffs [sic] use of OPRA for legitimate purposes."

According to the counterclaim, Schmidt and Walters "between January 1, 2011 and March 1, 2011 . . . filed a total of 154 [OPRA] requests" requiring Acting Clerk Jentsch to "spend close to 26 hours in responding." The counterclaim also alleges that "when it became apparent that the plaintiffs were undertaking a campaign of harassment via OPRA" City officials asked the Government Records Council (GRC) for advice. According to the counterclaim, the GRC told City officials "that there may be some relief provided in the substantial disruption provision of N.J.S.A. 47:1A-5.g" but that "the best option [is] to pursue a harassment complaint . . . in court."

The counterclaim is available on-line here.

The lawsuit and other other paperwork is on-line here. (File is 7.1 Mb)

Alert readers may remember that Clerk Jentsch is the same records custodian who announced in January 2011 that she was only going to accept two OPRA requests per day. My January 2011 posting on that issue is available here.

Just two OPRA requests per day in Gloucester City

The Clerk of Gloucester City (Camden County) has established a policy of handling only two OPRA requests per business day. According to Acting Clerk Kathleen M. Jentsh's January 7, 2011 letter (see link below), more OPRA requests than that will be considered a per se "substantial disruption" of the Clerk's functions. Such requests will not be considered "received" until all previous requests--at two per day--have been satisfied. For more information, click here.

Original Posting Date: January 10, 2011

Update: January 13, 2011

On January 10, 2011, I informed this forum that the Acting Clerk of Gloucester City (Camden County) had established a policy of handling only two OPRA requests per business day.

I received several responses. Among them was Open Public Records Act (OPRA) Attorney Walter Luers' January 10, 2011 e-mail to Government Records Council (GRC) Executive Director Catherine Starghill asking her to inform Gloucester City Acting Clerk Kathleen M. Jentsch that her policy conflicted with the OPRA.

Mr. Luers shared Ms. Starghill's response with me and informed me that Ms. Starghill consented to its publication. Ms. Starghill's e-mail is set forth below.

Also, I received an e-mail from another correspondent that included an e-mail from Ms. Jentsch. In her e-mail, Ms. Jentsch informed the correspondent that "I have since spoken with the GRC and am no longer limiting to 2 per day."

Accordingly, it appears that Gloucester City has rescinded its OPRA policy.

John Paff
Somerset, New Jersey

-------- Original Message --------
Subject: RE: Just two OPRA requests per day in Gloucester City
Date: Tue, 11 Jan 2011 21:41:28 +0000
From: Starghill, Catherine
To: 'Walter Luers'

Mr. Luers,

Thank you for informing me of this matter. I spoke with the Gloucester City Acting Clerk and Town Solicitor this morning regarding their new OPRA policy. Thereafter, my staff sent the Town Solicitor links to the GRC website of published GRC decisions interpreting the "substantial disruption of agency operations" provision in OPRA.

In a very clear manner, I informed them both that the Acting Clerk may not limit the number of OPRA requests received in any given day. Further, I informed the Town Solicitor that the Acting Clerk may request an extension of the statutory response time when any one request legitimately requires more than the statutorily mandated seven (7) business days to fulfill. I gave the following examples of legitimate reasons for an extension of time to provide records under OPRA: (1) records are in storage, (2) records are archived, or (3) the request is so voluminous that additional time to make copies and/or redactions is required.

Finally, I emphasized to the Towns Solicitor the legislative findings that provides that all limitations on access be construed in favor of the public. Both the Acting Clerk and the Town Solicitor appear to understand the GRC's position and appreciate that their policy must be rescinded.

If you have any questions regarding the foregoing, please contact me at your convenience.


Catherine Starghill, Esq.
Executive Director
State of New Jersey
Government Records Council
tel: 609-292-6830 | fax: 609-633-6337

Wednesday, March 9, 2011

Livingston Township is in violation of state records retention laws.

Livingston's web site invites members of the public to contact the mayor and council members by sending e-mails to their personal accounts. While it's good for public officials to be accessible by e-mail, the fact that their personal addresses are being used for official correspondence raises a question as to how Livingston is fulfilling its duties under state regulations to archive and preserve all official e-mails. (The applicable state regulations are on-line here.)

Suppose that a council member dies, moves out of town or has a computer crash. Suppose further that a citizen were to then submit an Open Public Records Act (OPRA) request for that council member's previously sent or received e-mails. Would the Township clerk be able to produce those e-mails without having to contact the former council member (or his or her estate) or subpoena them from the former council member's personal e-mail server?

On February 22, 2011, I sent a letter and an OPRA request to Livingston Mayor Rudy Fernandez and the members of the Township Council. In it, I asked for three random, municipal-related e-mails that were sent or received in February 2009 by former Township Councilman Charles "Buddy" August.

By letter of March 2, 2011, Township Clerk Glenn R. Turtletaub advised me that he was having trouble getting former Councilman August's e-mails because they are on his former employer's computer. He also stated that the "Township is aware of [the state record retention requirements], has been working to address the situation and is in the process of developing a policy to address the situation." He asked for a three day extension that I granted.

By letter of March 7, 2011, Turtletaub advised me that August's former employer advised him that "he does not know how to retrieve and can't retrieve any such documents, and that he has no knowledge of how to retrieve old e-mails from the time period when Mr. August worked for" his previous employer but that he would "keep trying."

The OPRA request and correspondence are on-line here:

Livingston's inability to produce official e-mails of a former council member clearly demonstrates that the Township is not in compliance with state regulations. Unfortunately, Livingston is only one of many New Jersey municipalities that I have found to suffer from the same deficiency.

Thursday, March 3, 2011

Loss in Readington

In October 2010, I sued the Township of Readington (Hunterdon County) because its police department would not provide me with records that said how much cash was confiscated from a car that contained illegal substances.

On December 23, 2010, well after my suit's filing, the Township released records showing that $61,649 had been confiscated and asserted that this disclosure was being made because "the ongoing investigation by the DEA and the US Department of Justice has now been concluded." In a subsequent certification, Readington Police Chief Sebastian Donaruma confirmed that the DEA's investigation concluded on December 22, 2010.

In order to recover costs and attorney fees on a records suit, the burden is on the requestor to prove that a) the lawsuit was causally related to securing the relief obtained and b) the relief granted had some basis in law. Readington asserted, however, that the reason for its December 23, 2010 disclosure was not my lawsuit but because the federal investigation had just concluded the day before.

My lawyer, Rick Gutman, and I determined that given the Chief's certification, there was very little likelihood that we could convince the court that the lawsuit, and not the resolution of the federal investigation, was the impetus for the disclosure. Therefore, we abandoned our claim for attorney fees and costs. So, while I got the records, I lost $230 in court costs and Mr. Gutman recovered nothing for his efforts.

Had the investigation not concluded until after the court had heard my lawsuit, I probably would have prevailed. After all, it would be hard for the police to persuasively argue that the governmental interest in keeping the amount of seized cash confidential--especially since that amount is already known to the criminal defendant who possessed the cash--is greater than the public's right to know that amount. If the court would have so decided, I would have recovered my costs and Mr. Gutman his fees.

But, when a criminal investigation resolves after a lawsuit's filing but prior to it being heard, the police can release the requested records and thwart the requestor's ability to recover his costs and fees. Since one never knows how long a criminal investigation will take, its risky to sue for records that are being withheld because of a pending criminal investigation. This risk is likely to dissuade attorneys from taking contingency cases in which records related to pending investigations are sought.

Tuesday, March 1, 2011

Closed Minutes reveal Galloway's reasons for removing Manager Tees

I recently requested the minutes of the Galloway Township (Atlantic County) Council's December 14, 2010 and January 25, 2011 closed session in order to better understand the reasons why Galloway Mayor Keith Hartman and Council members removed Manager Roger B. Tees from his position in late January 2011.

The minutes, although still heavily redacted, do provide some details on the Council's reasons for removing Tees. They are on-line here.

Friday, February 18, 2011

Important OPMA case: Court forbids routine "sequencing" of open and closed sessions.

In an important ruling handed down today, the Appellate Division ruled that the routine sequencing of a five-minute open session, followed by a closed session of indeterminate duration, followed by the resumption of an open session, violates the Open Public Meetings Act (OPMA).

The court found that such sequencing forces citizens to wait a considerable period of time while the body is in closed session and provides them no guarantee when the open session will resume. Such uncertainty, the court ruled, will inevitably cause some members of the public to leave the meeting, a result that would be avoided if the closed session did not begin until the entire public session had been completed.

The court did not rule that there could never be a case where it was proper for a closed session to be held before the public portion ended. Rather, it ruled against the public body in this case because the record reflected that the body routinely engaged in this practice.

Also of importance was the court's ruling that resolutions passed in advance of a closed session AND THE PUBLIC NOTICES ADVERTISING THE CLOSED MEETING, "should contain as much information as is consistent with full public knowledge without doing any harm to the public interest."

The court also ruled that the body's discussion regarding "the need for clear rules to be implemented across all facets of the University" should not have been held in closed session.

The decision, McGovern v. Rutgers, is on-line here.

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

Wednesday, February 9, 2011

State fines four Roselle Park officials for failure to disclose finances

On January 31, 2011, the Local Finance Board, which is within the New Jersey Department of Community Affairs, levied $100 fines against four Roselle Park (Union County) officials who failed to file their Financial Disclosure Statements (FDS) in 2008.

The four officials are:

Gail Bradley, Board of Health member
Robert Tobe, Fire Chief
Bill Heim, Zoning Board member
Jeff Regan, Library Board member

The Notices of Violations against the four officials are on-line here.

The FDS forms are required by New Jersey's Local Government Ethics Law to be filed by elected and certain appointed municipal officials. The forms disclose officials' sources of income, business interests and real estate holdings so that members of the public can better determine if officials have a conflict of interest in any given matter.

For example, a Zoning Board member's form might disclose, among other things, that the member's spouse works for a particular company. If the company for which the spouse works applies for a variance before the Zoning Board, the public might not realize that the member is conflicted from acting on that application had the member failed to file an FDS form.

The fines were levied in response to an October 1, 2009 complaint filed by the New Jersey Libertarian Party's Open Government Advocacy Project. In that complaint, the Project alleged that twenty-seven Roselle Park officials had failed to file the FDS forms due on April 30, 2008. Among those named in the complaint for failing to file was First Ward Councilman Laurence Dinardo. The New Jersey Libertarian Party's complaint and letter to the Mayor and Council are on-line here.

During 2008, 2009 and 2010, the Libertarian Party filed complaints against hundreds of officials in approximately fifty municipalities around the State. Previously, the Local Finance Board has steadfastly refused to fine officials who fail to file as long as the official later files the delinquent form.

In light of the Libertarian Party's complaints, however, Thomas H. Neff, who chairs the Local Finance Board, has informed the Party that "the Board is considering implementation of a stricter policy of fining local government officers who fail to file annual financial disclosure statements in a timely manner." Neff added, however, that "pending advance notice of such a policy, the past policy of not fining officers who file statements in response to complaints will continue." A January 31, 2011 letter from Neff that contains these quotes is on-line here.

It is believed that the fines levied against these four Roselle Park officials are the first fines to be levied against non filers by the Local Finance Board since the Local Government Ethics Law was enacted in 1991.

Friday, February 4, 2011

Senate Substitute for S-1351 (Open Public Meetings Act)

A few readers have asked me for my thoughts on the Senate Committee Substitute (SCS) for S-1351 that was passed by the Senate State Government Committee on Monday, January 31st.

(Both the SCS and the version of S-1351 that was introduced are on-line here.)

Most of the SCS's changes are clearly good, but I've noted some possible concerns below:

1. The SCS defines "effective majority" as "the number of members necessary to conduct public business." Accordingly, an "effective majority" will be the same as a quorum. SCS/page3/line39. Many activists had previously argued that "effective majority" meant a majority of a quorum.

2. Instead of requiring bodies to notify the public of the "specific starting times" of a closed session, the SCS allows them to announce those times "as nearly so as can be established." SCS/4/33.

3. The SCS allows members of public bodies to send text messages to each other during meetings as long as those messages are "purely administrative in nature." SCS/6/28. Yet, a citizen observing two council members texting each other will have no way of knowing whether those texts are administrative or substantive.

4. The SCS requires bodies to audio-record their public meetings only if they already own sound recording devices. SCS/9/31. Accordingly, public bodies can avoid audio-recording meetings by refusing to purchase audio devices or by disposing of the devices they already possess.

5. The SCS removes the requirement that closed meetings need to be audio-recorded by a public body and allows any recordings of closed sessions that a public body voluntarily records to be kept confidential unless otherwise ordered by a court. SCS/9/35 and SCS/10/4.

6. The SCS allows for dismissal of a lawsuit to void a public body's action because of sunshine noncompliance if a) the body takes action after the lawsuit's filing that moots the case and b) if it's the public body's first instance of noncompliance. And, the SCS denies attorney fees for non-prevailing plaintiffs who bring such suits even if their suits are "found to have been instrumental in bringing about compliance." SCS/10/29 and SCS/10/40.

7. The SCS limits the public's enforcement of sunshine penalties to only those members of the public who have "suffered an injury in fact" by the sunshine violation. SCS/11/19 and SCS/11/29.

8. The SCS allows for removal of an appointed official only if a court determines that his or her sunshine violations "result in a significant denial of the public's right of access." SCS/13/26

Wednesday, January 26, 2011

Court orders disclosure of phone call neighbor made to cops

On January 7, 2011, Hudson County Superior Court Judge Bernadette H. DeCastro ordered the Town of West New York (Hudson County) and its record custodian, Carmela Riccie, to disclose a recording of a call to the West New York Police Department that resulted in plaintiff's car being towed.

According to the complaint, Plaintiff Frank Ponce's car was towed on September 4, 2010 after someone called police and reported that the car was blocking a driveway. Police also issued Ponce a summons for improperly blocking the driveway.

Ponce claims that the owner of 6708 Palisade Avenue, the location from which the car was towed, "has made numerous, unfounded complaints" against him. While he suspects that the owner called police, he wants to listen to the recording so that he can verify who made the call. Since he is pleading not guilty to the summons, he says that he needs that information so that he can subpoena the caller as a witness before the Municipal Court.

DeCastro ordered Riccie to provide Ponce with the recordings he sought and also declared him to be the prevailing party in the litigation who is entitled to recover his costs and attorney fees from West New York.

Ponce was represented by Walter M. Luers of Oxford. The complaint, brief and DeCastro's order are on-line here.

Brigantine suit partially settled and court will hear argument tomorrow

Update: The March 10, 2010 Investigation Report (redacted), Judge Johnson's February 25, 2011 Order and Opinion are on-line here.
On November 1, 2010, I reported that I had sued the City of Brigantine (Atlantic County) seeking access to a) a redacted settlement between a top Brigantine official and an employee who accused him of sexual harassment and b) a report of the City's investigation of the alleged sexual harassment.

I am being represented in this suit by Richard Gutman, Esq. of Montclair. Background is available on-line here.

The City and I recently settled my demand for the settlement agreement. The settlement agreement between me and Brigantine is at pages 101 - 106 of the PDF file here.

Atlantic County Superior Court Judge Nelson C. Johnson will hear my claim for the investigation report on Thursday, January 27, 2011 at 1:30 p.m. in Atlantic City.

According to the terms of its settlement with me, Brigantine agreed to provide me with a copy of its settlement with former Brigantine Police Chief James C. Frugoli, Jr., an unidentified "victim" in an unspecified "personnel matter" and the City. This is exactly the record to which Brigantine previously denied access. As part of the agreement, Brigantine also agreed to pay my out-of-pocket court costs and attorney fees in the amount of $3,188.67.

The disclosed document, which is at pages 107 - 109 of the PDF at the link above, shows that on March 30, 2010: a) Frugoli agreed to retire and not seek reemployment with the City, b) the unidentified person who was involved in the "personnel matter" with Frugoli would release Frugoli and the City from any claims, and c) that the unidentified person would receive "time off with pay up through and including April 4, 2010."

Also of interest is Brigantine's opposition paperwork filed December 17, 2010. In it, City Manager James Barber strongly implies that the allegation of sexual harassment against Police Chief Frugoli was trumped up by Police Captain Raymond Cox and current Chief John Stone after Frugoli had second thoughts about retiring. Barber's affidavit is on pages 82 - 86 of the PDF.

Finally, at page 87 of the PDF is City Attorney Timothy Patrick Maguire's January 3, 2011 letter to Judge Johnson explaining Mr. Barber's comments that were reported in an April 9, 2010 article in the Press of Atlantic City. Those comments were:

"There was an internal investigation, and we are confident (in its results)," Barber said. "There were a lot of rumors, but did anything really occur? No."

In his January 3rd letter, Maguire explained that Barber's comment referenced allegations that Chief Frugoli had engaged in misconduct "outside of the police department which was unrelated to the alleged conduct with had occurred in the City of Brigantine." The way I interpret it, Maguire is saying that Barber's comment that nothing occurred should not be taken to mean that the investigation cleared Frugoli of misconduct that was alleged to have taken place within the City--including, presumably, allegations that Frugoli sexually harassed a subordinate. Rather, Barber's comment should be taken to mean only that Frugoli did not engage in misconduct outside of the City.

The January 27, 2011 hearing is scheduled to begin at 1:30 p.m. at the courthouse at 1201 Bacharach Blvd, Atlantic City. The public is invited to attend, but cautioned to telephone the court at 609-594-3384 or 609-594-3579 tomorrow morning to verify that the hearing has not been canceled or postponed. Refer to Paff v. Brigantine, Docket No. ATL-L-5038-10.

Monday, January 24, 2011

New Jersey Courts put civil index on-line

The New Jersey Judiciary recently put the Automated Case Management System (ACMS), its computerized civil case index, on-line. Previously, anyone who wished to access this index needed to travel to his or her county's courthouse and use a public access terminal there.

To access the system, go to the Judiciary's main site here and navigate to "Attorneys" and then "Civil Case Public Access."  Or, you can try going directly to this link.  Then enter the CAPTCHA code and you can begin your search, either by party name, docket number or you can access archived cases.

(NOTE: You may have to configure your browser to allow pop-ups.)

While the index can serve several uses, I'll go through an example of how it might help someone who wants to know more about lawsuits filed against municipalities in Hunterdon County.

After you log in to the main screen, enter "Borough of" in the "Last Name" box and click on "party inquiry." What you will get is a list of every non-archived court case in which the name of one of the parties begins with "Borough of" Here's a typical entry:

Party name: Borough of Belmar
Party#: 1
Cou: MON
Docket Number: LT-001024-99
Date Disposed: 03/12/1999
The "Party#" field is the position of the party in the lawsuit. For example, in the suit of "John Doe v. Mary Smith and Jane Roe" John would be "Party#" 1, Mary would be 2 and Jane would be 3. So, the fact that the Borough of Belmar is listed as Party# 1 almost certainly means that it is the plaintiff.

"Cou" means "County" which shows that the case was filed in Monmouth County.

The docket number "LT-001024-99" means that it is the 1024th Landlord Tenant case (LT) filed in Monmouth County in 1999.

The "Date Disposed" field means that the case terminated on March 12, 1999.
Generally, I'm not very interested in Landlord tenant cases. Nor am I generally interested in cases with docket numbers that start with "DC" (Special Civil Part--cases where less than $15,000 in damages are claimed); or "SC" (Small Claims -- cases where less than $3,000 in damages are claimed).

So, to sort out the "LT" "DC" and "SC" cases (along with "C" (Chancery) and "F" (Foreclosure) cases), I typically select "Law Civil" in the "Court" drop-down box.  Then, to narrow the cases to those filed in Hunterdon County, I select "Hunterdon" in the "County drop down box and hit "new search."  Of course, you can choose any county or leave the county field blank of you want the ACMS to report cases from all counties.

If you follow these steps, you should now have a list of all the Law Division cases filed in Hunterdon County by or against a party whose name begins with "Borough of."
Note: This article was last updated on November 7, 2017.  Since cases open and close constantly, the example I am about to give may not be available when you access the system.
If you look at the case list, you'll see one in which the "Borough of High Bridge" is the 2nd party to the case. You'll also see that the docket number is HNT-L-000003-17 and that the case hasn't yet been disposed of.

Click the "radio button" in the left column and click "Case Party List." You'll see that a plaintiff named Linda Mills sued several defendants, including the High Bridge Police Department.

Now, click on the little icon that looks like a magnifying glass with five dots in it and then click the "Locate by Docket" tab. The HNT-L-000003-17 docket number should already be plugged in, so hit "Case Document List" to see the types of documents that were filed in the case.  At the time of this writing, the documents show that the lawsuit was filed on January 5, 2017, that the defendants filed an answer on April 12, 2017 and that the matter was referred to mediation on August 3, 2017.

If you click the left-arrow icon and then "Case Detail" you'll see that it's a "civil rights" case.

There is no currently no way for the public to see the actual documents filed in the case on-line. If you are interested in knowing exactly why Mills sued, you'd have to contact the courthouse in Flemington to review the file or get a copy of the file or (easier) send an OPRA request to High Bridge and ask for the civil complaint filed in the case along with any other documents you would like to see.

I hope you find this helpful.

NOTE1: The court enters the parties to lawsuits exactly how they are listed on the suit's filing. So, if you're interested in learning about lawsuits against the Borough of High Bridge, you'd have to search "High Bridge Borough" as well as "Borough of High Bridge" or perhaps even "Boro of High Bridge."

NOTE2: This system only reveal filings in state court (i.e. the New Jersey Superior Court) not those filed in federal court. To access federal court filings, you could try a free site such here or establish an account at the official government site here.

Wednesday, January 19, 2011

Washington Council (kind of) improves transparency

On January 11, 2011, Jason Braff of the Pascack Valley Community Life reported that the Washington Township Council (Bergen County) agreed to begin using a new form of resolution to go into closed session.

The Township's prior resolution, the New Jersey Libertarian Party's proposed resolution and the resolution that the Township is now using are on-line here.

The new resolution is better than the old one because it reveals the specific item of litigation and one of the specific land acquisition matters that were privately discussed. Yet, it vaguely discloses that "contract negotiations" were privately discussed without disclosing the parties to the contracts or even how many contracts were discussed. And, it stated--without more--that "personnel" matters were discussed.

In sum, Washington's new resolution, while better than the old one, is a half-hearted attempt to improve its compliance with the Open Public Meetings Act.