Sunday, March 18, 2012

Florence Township's improper OPRA denial

On December 1, 2011, I submitted an Open Public Records Act (OPRA) request to Florence Township (Burlington County) to gain information regarding Nicholas J. Costa, Esq.'s payment for serving as the Township's municipal prosecutor during 2010. Part of my request sought copies of "both sides of any check written to Mr. Costa for prosecutorial services performed during 2010."

In his December 15, 2011 letter, Township Administrator Richard A. Brook informed me that Mr. Costa received $22,814.04 during 2010 but opined that my request for copies of the checks was "outside the bounds of the intent of the OPRA law." According to Mr. Brook, my request "essentially equates to prying into someone's personal private accounts." Mr. Brook further observed that since backs of checks "deal with personal bank account numbers, personal signatures and possible routing numbers," my request raised "issues dealing with an employee's identity, identity theft and information that is really personal in nature." In denying my request for the check copies, Mr. Brook intoned that "even people who work in the public sector deserve a measured and reasonable degree of privacy."

Of course, Mr. Brook could have simply redacted the account numbers and other "really personal" information from Mr. Costa's payroll checks. This is what N.J.S.A. 47:1A-5(g) requires. ("If the custodian of a government record asserts that part of a particular record is exempt from public access . . . the custodian shall delete or excise from a copy of the record that portion which the custodian asserts is exempt from access and shall promptly permit access to the remainder of the record.") Instead, he elected to suppress the checks in their entirety, which resulted in me, represented by Walter M. Luers, Esq., filing an OPRA lawsuit (Paff v. Township of Florence, et al, Docket No. BUR-323-12).

What Mr. Brook didn't realize is that I did have a legitimate need to see Mr. Costa's payroll checks. I had previously learned that Mr. Costa, who also serves as municipal attorney for the Borough of Wrightstown (as well as in several other positions in Burlington County) failed to report Florence Township as a source of income on the Financial Disclosure Statement that he filed with Wrightstown. The only arguable justification for failing to report this source of income would be if Florence paid Mr. Costa's law firm, instead of Mr. Costa personally, for his prosecutorial services. Thus, I needed to see the actual checks to see who received the taxpayer's money.

Florence was represented in the OPRA suit by Anthony H. Ogozalok, Esq. of Capehart Scatchard. Mr. Ogozalok didn't even fight the lawsuit. Instead, he simply sent my attorneys copies of the checks "in lieu of filing an Answer to the Complaint." Mr. Luers is currently sending his bill for attorney fees and court costs to Florence for payment.

Almost comically, the versions of the checks Mr. Ogozalok provided contained Mr. Costa's personal bank account number. One might think that given Mr. Brook's alleged concern over revealing this "really personal" information, the Township's lawyer would have redacted the account numbers before releasing the checks to me. No worries, however, as I have taken it upon myself to excise the account numbers and and have uploaded Mr. Ogozalok's letter and the redacted check here.

Mr. Brook's decision to deny my request, while a foolish waste of taxpayer money, doesn't rise to the "knowing and willful" level that OPRA requires before "civil penalties" are imposed upon a government official who unreasonably denies a request. But, Senate Bill 1452, if enacted into law, would lower the "knowing and willful" requirement to "grossly negligent." This would make it easier to impose $1,000 fines against records custodians and other government officials who subvert OPRA. Perhaps officials would be less cavalier in denying OPRA requests if they were held personally accountable for their poor decisions.

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

P.S. Now that I have seen the checks, I filed a complaint against Mr. Costa with the Local Finance Board for failing to report Florence Township as a source of income on the 2011 Financial Disclosure Statement he filed with Wrightstown.

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