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.