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.

Sincerely,

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.