Thursday, March 22, 2012

Court: Bayonne "intentionally violated OPRA."

In its March 22, 2012 decision in Mark's Advanced Towing, Inc. v. City of Bayonne, Robert Sloan et al, the Appellate Division referred to an April 1, 2010 order entered by Hudson County Superior Court Judge Bernadette N. DeCastro that found that the City of Bayonne "intentionally violated" the Open Public Records Act (OPRA).

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.

Friday, March 16, 2012

OPMA lawsuit filed against Englewood Cliffs school board

On March 12, 2012, I filed a four-count lawsuit against the Englewood Cliffs (Bergen County) Board of Education alleging violations of New Jersey's Open Public Meetings Act. The lawsuit, which is on-line here, concerns the school board's nonpublic (closed or executive) meeting minutes and resolutions. While I still need to formally serve the Board with the lawsuit, I already e-mailed the Board an advance copy of it.

Thursday, March 8, 2012

Haddon Heights settles OPMA lawsuit

On February 21, 2012, Susan Scoblin-O'Neill settled her pro se Open Public Meetings Act (OPMA) lawsuit against Haddon Heights Borough (Camden County). In exchange for dismissal of her lawsuit, the Borough has agreed, among other things, to ensure that its future closed session resolutions "disclose as much information as possible without harming the public interest or the Borough's interest in keeping the matter private." The Borough also agreed to reimburse Susan her $260 in out-of-pocket court costs.

The agreement, which is in the form a release, and not an order filed with the court, is on-line here.

It is important for citizens to learn how to file OPMA lawsuits. Since the OPMA does not contain any provision requiring public bodies to pay successful plaintiffs' attorney's fees, most citizens are understandably reluctant to hire lawyers to bring OPMA cases. Absent a legislative amendment, the OPMA will remain largely unenforced unless citizens file their own lawsuits. Thanks to Susan for stepping up to the plate.

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

Tuesday, March 6, 2012

Elk Township passes Open Public Meetings Act policy.

On December 14, 2011, as part of a ruling in an Open Public Meetings Act (OPMA) case, Superior Court Assignment Judge Georgia M. Curio ordered the Elk Township (Gloucester County) Committee to "implement an effective [OPMA] policy . . . within sixty (60) days." Mayor Philip A. Barbaro and the Committee adopted the policy on March 1, 2012 and a copy of it is on-line here.

The majority of the policy summarizes the OPMA and doesn't add any additional protections to the public's interest beyond what is provided by the OPMA itself. The policy does, however, establish an e-mail usage policy. It also requires closed meeting minutes to be a "general summary of the matters discussed" and states that an "advisory body" is subject to the OPMA if it "has the power to eliminate options available to a decision-making body."

The policy applies to the Township Committee as well as the Township's land use boards and other agencies and boards of the Township.