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 Judge DeCastro, citing the unpublished Appellate Division opinion in Hirsch v. City of Hoboken, determined that the Superior Court does not have jurisdiction to impose civil penalties.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

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