Wednesday, October 10, 2012

OPMA hearing in Woodbury, November 29, 2012

On Thursday, November 29, 2012 at 9:30 a.m., Superior Court Assignment Judge Georgia M. Curio will conduct an Order to Show Cause hearing at the courthouse in Woodbury in a local citizen's Open Public Meetings Act (OPMA) lawsuit against the Washington Township (Gloucester County) Board of Education.  At issue in the suit is the legality of the school board's closed session discussion of a board member's receipt of campaign contributions from an engineering firm hired by the school district.  The lawsuit and related paperwork is on-line here

The hearing is open to the public, but those who wish to go are advised to call Judge Curio's office at 856-686-7533 the day prior to the hearing to ensure that the hearing hasn't been postponed.  Refer to Mello v. Murphy, Docket No. GLO-L-1403-12.

Thursday, October 4, 2012

The Port Authority is not subject to OPRA

UPDATE: The conclusion reached in this post has been superseded by the June 26, 2015 enactment of P.L. 2015, Chapter 64 which, along with a similar enactment in New York, made the Port Authority subject to OPRA.
Today, October 4, 2012, the Appellate Division ruled that the Port Authority of New York and New Jersey is not subject to the Open Public Records Act (OPRA).  In its ten-page opinion, available here, the court found that since the Authority was created jointly by both New York and New Jersey, it is not subject to the statutory law of only one state. This decision, of course, is not good for open government.

The Port Authority recently denied me access to the settlement agreement arising out of Hannah Shostack v. Port Authority, Federal Case No. 2:11-cv-00177. Shostack, who used to work for the Authority, was fired "without notice or cause" on August 11, 2010.  While the Port Authority told her that her position was being eliminated, Shostack claimed in her lawsuit, which is available on-line here, that the real reason she was fired was because "she is not affiliated with the Republican Party and/or the administration of Republican Governor Chris Christie."  In her lawsuit, Shostack alleged that her supervisor "Chris Russell informed her that the decision to discharge her came straight from Governor Christie's office and there was nothing he could do to save her job."  Her suit claims that at about the same time she was fired, several other employees who were not affiliated with the Republican Party were also fired.

New Jersey Courts have held that disclosure of lawsuit settlement agreements serves the public interest. Burnett v. County of Gloucester, 415 N.J. Super. 506, 517 (App. Div. 2010) ("We find the public interest in settlements to be a significant one, since such settlements may provide valuable information regarding the conduct of governmental officials and the condition of government property.") Yet, the Port Authority's records custodian, Daniel D. Duffy, in his September 5, 2012 denial letter, claimed that the settlement agreement was "exempt from disclosure pursuant to Exemption (3) of the [Port Authority's Freedom of Information] Code" which exempts sensitive records that "are compiled for public safety, law enforcement or official investigatory (internal or external) purposes."  This is clearly erroneous, but according to the Authority's FOIA code, Duffy's decisions are "final."

Knowing the amount of money that Shostack received in her lawsuit settlement for is especially important because she alleges, in essence, that the Port Authority is filled with political patronage jobs that the sitting governor can award to his supporters and cronies.  If Shostack received, say, a $500,000 settlement, the public could reasonably draw an inference that there was some truth to her allegations.  If she received, however, $10,000, the public could reasonably disregard her claims as nothing more than sour grapes.

Unfortunately, the Port Authority doesn't want the public to know the settlement information and New Jersey courts, in today's ruling, have upheld the Port Authority's ability keep the public in the dark.

Wednesday, October 3, 2012

Borough places OPRA requestor in the cross-hairs.

On October 1, 2012, the Borough of Pine Hill (Camden County) asked a federal judge to allow it to seek civil damages from an Open Public Records Act (OPRA) requestor who obtained records that led to an invasion of privacy lawsuit currently pending against the Borough.  The documents relating to this matter are on-line here.

According to the court filings, in October 2011, Gloucester City resident John Schmidt submitted an OPRA request to the Borough of Pine Hill seeking documents relating to a wrongful termination lawsuit filed against the Borough by a Borough employee.  While Schmidt's request was for motions and briefs filed in the lawsuit, Pine Hill provided him with some documents that were not within the scope of his request that contained "confidential and private information" which the employee claims was "intentionally released [by the Borough] to embarrass and cast [the employee] and his family in a poor light."   The records the Borough disclosed to Schmidt allegedly contained the employee's children's social security numbers, information suggesting that the employee's wife abused prescription medication and that acts of domestic violence occurred at the employee's residence.

In its October 1, 2012 filing, the Borough contends that its release of this confidential information to Schmidt was "inadvertent" and that Schmidt "intentionally disclosed and transmitted that information to others, including a newspaper reporter."  Accordingly, the Borough wants to bring Schmidt in as a defendant in the lawsuit so that he is forced to contribute to any monetary damages that the Borough may be required to pay as a result of the employee's family invasion of privacy lawsuit.  In other words, Pine Hill is seeking to make Schmidt financially liable for allegedly redistributing the same information that the Borough itself had no right to disclose.

Pine Hill's bid to bring Schmidt into the lawsuit will be determined at a November 5, 2012 court hearing.

Tuesday, October 2, 2012

Unpublished Trial Court OPRA opinion

Update: The Appellate Division ruled in A.A. v. Gramiccioni, 442 N.J. Super. 276 (App. Div. 2015) that, absent compelling circumstance, anonymous OPRA lawsuits are not permitted.
"Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals. Unless somebody puts them on-line and calls attention to them, they are likely not to be located by people who may want to search for them. I think that it's important that court opinions, even if they are not precedential, are easily accessible for future use.

I have converted the scanned opinion to a searchable text version. A link to the scan is contained within the footer to the live document.

    Anonymous v. Borough of Longport
    Atlantic County, Docket No. ATL-L-9552-11
    Hon. Nelson C. Johnson, J.S.C.
    August 17, 2012
    Click here for the opinion.
Primary Holding: Anonymous records requestors may not enforce the Open Public Records Act (OPRA) in Superior Court unless they public identify themselves.