Friday, August 17, 2012

Unpublished trial court OPRA opinion

"Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals.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 I think that it's important that court opinions, even if they are not precedential, are easily accessible for future use.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.

    Gannett Satellite v. Borough of Raritan
    Somerset County, Docket No. SOM-L-1798-09
    Hon. Yolanda Ciccone, A.J.S.C.
    August 15, 2012
    Click here for the opinion.

Holding: Electronic file of payroll information stored by Borough's payroll vendor was subject to disclosure under the Open Public Records Act (OPRA).

Monday, August 13, 2012

Unpublished trial court OPRA opinion

"Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals.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 I think that it's important that court opinions, even if they are not precedential, are easily accessible for future use.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.

    Terence Jones v. Deptford Township et al
    Gloucester County, Docket No. GLO-L-2105-11
    Hon. Georgia M. Curio, A.J.S.C.
    August 13, 2012
    Click here for the opinion.

    Findings: a) DVD of video on file with the police was a government record under both the Open Public Records Act (OPRA) and the common law right of access; b) DVD was exempt under OPRA due to the "criminal investigatory record" exception and c) governmental interest in confidentiality of this particular closed investigation did not outweigh citizen's right to access.  Also, although not recited in the opinion, the Court ordered Defendant to pay Plaintiff's costs and counsel fees.

Friday, August 10, 2012

Belleville Library Board Member Given Pass on $300 Ethics Fine

The Local Finance Board (LFB) conceded today (August 10, 2012) that the Board, in the past (and "under a prior administration"), did not always follow "standard procedures for pursuing fines for penalty enforcement."  Accordingly, a $300 fine levied in 2007 against a member of the Bellville (Essex County) Library Board of Trustees was never enforced and, apparently, will not now be enforced.

On December 4, 2007, the LFB issued a Notice of Violation against Michael Perrone who, despite being a Local Government Officer, failed or refused to file his Financial Disclosure Statements for 2004 and 2005.  The Notice levied a $300 fine against Perrone.

On July 24, 2012, I submitted an Open Public Records Act (OPRA) request to the Division of Local Government Services (LGS) within the Department of Community Affairs for records proving that Perrone either paid the fine or the LFB took enforcement action against him. On July 31, 2012, I received a response from LGS records custodian Colleen Kelly informing me that no documents existed that were responsive to my request.

On August 2, 2012, I submitted a follow up OPRA request to see whether the fine against Perrone was abated or if some other legitimate reason existed for the state's failure to collect it. On August 10, 2012, I received Kelly's response confirming that the fine was never paid, collected or abated.  The response included an explanation from LGS Director Thomas H. Neff which, in essence, conceded that the matter slipped through the cracks. Mr. Neff assured me, however, that his agency has "since rectified" this lapse in enforcement proceedings.

Perrone's Notice of Violation and the OPRA requests and responses are on-line here.

Ex-wife of Cranford Police Chief still on State Health Benefits Program

I received an inquiry from a member of the public who was concerned that Cranford (Union County) Police Chief Eric Mason's wife was still enrolled in the New Jersey State Employee Health Plan despite having been divorced from Mason for two years.  In response to my OPRA request, Division of Pensions and Benefits Assistant Director David J. Pointer, in an August 9, 2012 letter, advised me that since Maryanne Del Negro-Mason's divorce from Chief Mason was "limited" as opposed to "absolute," Maryanne "is still entitled to coverage as a 'dependent' in the State Health Benefits Program."

Mr. Pointer's correspondence to me is on-line here.

Thursday, August 9, 2012

Town attorney: Donut eating councilmen have "an expectation of privacy."


According to an article in the August 8, 2012 Express-Times,  Phillipsburg activist Blaine Fehley turns his camera on fifteen minutes prior to town council meetings and catches things like councilmen chowing down on donuts which is on Fehley's website.  The town has responded by proposing an ordinance that would, among other restrictions, prohibit filing council meetings until they are called to order.  According to town attorney Richard Wenner, “until you are in a public meeting, there is an expectation of privacy.”

Update: Phillsburg's proposed ordinance is on-line here

Tuesday, August 7, 2012

A call from the New Jersey Attorney General's office.

I received a telephone call on Monday, August 6, 2012, from Deputy Attorney General Vincent J. Rizzo, Jr., Esq.  A recent posting I made on a newspaper's blog site had caught Mr. Rizzo's attention and caused him concern.

At issue were some files I placed on-line regarding a July 27, 2012 Press of Atlantic City article that reported on Jason Dare, a New Jersey State Trooper, being acquitted of drunk driving and refusal to take an Alcotest after an early morning, single car crash in Hamilton Township, Atlantic County. 

The files consisted of the "crash report" of Trooper Dare's car accident, the summonses that were issued to him and the incident reports prepared by the Hamilton police officers who investigated the accident and arrested Trooper Dare.

I obtained the crash report and the incident reports from Michael T. Brandenberger, records custodian for the Hamilton Police Department.  They contained Trooper Dare's address, license plate number, driver license number and auto insurance policy.  Since the latter three categories of information are identified as "confidential personal identifiers" by Court Rule 1:38-7,  I redacted them before posting the records on-line.

I received the summonses from Antoinette Tummon, Deputy Court Administrator of the Hamilton Municipal Court.  Trooper Dare's driver license number and license plate documents were redacted from the summons, but his address was disclosed.  I uploaded those documents to the Internet without further redactions.

Deputy Attorney General Rizzo was concerned that the summons and crash report (as well as one of the incident reports) disclosed the address that was on Trooper Dare's driver license, which Mr. Rizzo told me was the address of Dare's home which he occupied along with his wife and two small children.  Mr. Rizzo explained that since Trooper Dare may have done undercover work and may have made himself enemies among the criminal class, my on-line disclosure of his home address tended to put the Trooper and his family at risk.  He asked me to further redact the records so as to obscure the Trooper's home address.

My response to Deputy Attorney General Rizzo was probably not what he expected.  I remarked that police officers aren't the only ones who have cause to be concerned with the general public knowing where they and their families sleep at night.  I used myself as an example, and remarked that I have filed ethics and other types of formal complaints against a multitude of attorneys, police officers and other officials and the thought had crossed my mind that some of them might respond in a violent manner.  I asked Mr. Rizzo whether he would be similarly protective of my home address if someone had, for instance, submitted an OPRA request for a traffic ticket that I had received and posted the ticket--with my residence address in full view--on the Internet.  I also raised a possible societal benefit in making the residence addresses of police officers as easy to determine as those of non-law enforcement citizens.  I suggested that this awareness might might cause some officers to treat the citizens they serve more reasonably and humanely.

My concluding remarks to Mr. Rizzo were that a) I didn't wish any harm to come to the Trooper or his family but that b) I didn't agree that someone's status as a law enforcement officer automatically exempts him from the concerns that the rest of us face when our personal information is on public display.  I also said that c) even if I agreed with him, I didn't think that he and I should decide this issue on an ad hoc basis. Rather, I stated that the issue of which, if any, classes of employees, both public and private, should be protected from public disclosure of their residential addresses should be deliberated and decided as a matter of general public policy.

In sum, I offered Mr. Rizzo the following.  I would redact Trooper Dare's home address, temporarily, until Friday, September 7, 2012.  Such would give Deputy Attorney General Rizzo, Trooper Dare and others in law enforcement an opportunity to obtain a court order or other legal remedy preventing me from reposting the Trooper's home address on the Internet.  The court or administrative proceeding leading up to the ultimate decision would allow for public deliberation and evaluation of all aspects of the question.

I believe that this is a reasonable accommodation of law enforcement's concern.  While recognizing that I can do nothing to prevent those who have already downloaded Trooper Dare's home address from reposting it elsewhere, I have at least temporarily stopped further disclosure of that information from my Internet uploads until the necessary deliberation and determinations occur.

The properly redacted records (which I recommend to those who wish to see how Trooper Dare interacted with Hamilton officers--e.g. Trooper Dare's brother, Nicholas Dare, is employed as a Hamilton Township Police Officer and Sergeant Gehring reported that Trooper Dare used profanity, slurred his words and had a "strong odor of an alcoholic beverage coming from his breath") are on-line here:

Motor Vehicle Crash Report
Summonses issued--"not guilty" verdicts entered for each.
Captain Petuskey's Incident Report
Sergeant Gehring's Incident Report
Officer Esposito's Incident Report
Officer Lee's Incident Report
Officer Rudolph's Incident Report

Also of interest is Captain Petuskey's report, which recounts his telephone conversation with Hamilton Township Municipal Court Judge H. Robert Switzer, who told Petuskey that he could not forcibly take blood from Dare at the hospital.  While it's not entirely clear, Switzer's decision perhaps finds some support in the New Jersey Supreme Court's 2001 Decision in State v. Ravotto, 169 N.J. 227, which is on-line here.

John Paff, Chairman
New Jersey Libertarian Party's
Police Accountability Project

Monday, August 6, 2012

Unpublished trial court OPMA opinion

"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. Links to the scan is contained within the footer to the live document.

Lebanon Township Post 115 First Aid Squad et al v.
Township of Lebanon et al
Hunterdon County, Docket No. HNT-L-232-10
Hon. Peter A. Buchsbaum, J.S.C.
June 11, 2010
Click here for the opinion.
Findings: a) that terse recitation of executive session topics was not permissible under the Open Public Meetings Act (OPMA) and b) topics were discussed in executive session that ought to have been discussed in public.



Thursday, August 2, 2012

Special Service Charge for reports prepared by private vendors

I recently learned that the West Orange Board of Education assesses records requestors a $150 special service charge for each payroll report requested under the Open Public Record Act (OPRA).  According to a July 31, 2012 e-mail from ADP, the payroll vendor (available here), the company apparently does charge the Board $150 for each report prepared.

It's difficult to criticize the Board for simply passing a vendor's actual charge for fulfilling a request along to a requestor.  Indeed, such seems to be expressly authorized by N.J.S.A. 47:1A-5(d).  Yet, $150 seems like a lot of money for what appears to be a simple act of having an ADP employee push a key and produce a payroll report.  Also, it strikes me that public agencies, many of which have an innate disposition toward suppressing public information, cannot be relied upon to vigorously negotiate for low access fees with the private vendors with which they contract out their services.  Indeed, it is likely that some ornery agencies might even secretly work to intentionally put excessive charges in their vendors' service contracts for the exact purpose of dissuading citizens from gathering critical government records.

This is the first time I've encountered this particular problem and am not clear, short of legislation, how to resolve it.