Saturday, February 2, 2013

A win, a loss and an adjournment in Belvidere yesterday

On Friday, February 1, 2013, Warren County Superior Court Judge Amy O'Connor ruled on two Open Public Records Act (OPRA) cases. A third hearing originally scheduled for the same day was postponed. The plaintiff in all three cases was represented by Walter M. Luers of Clinton. 

Carroll v. Warren County Community College Foundation
Docket no. WRN-L-385-12

At issue: Whether the Warren County Community College Foundation (WCCCF) is a government agency subject to OPRA.  The WCCCF is a non-profit agency that is closely associated with the Warren County Community College (WCCC) and secures grants and donations to fund scholarships for WCCC students.  (More information on the suit is set forth in the Express-Times' October 24, 2012 news article.)

Result: Judge O'Connor ruled that the WCCCF is a "public agency" as defined by OPRA.  The chief reason for her ruling was that WCCC, under the WCCCF's bylaws, retains the power to approve or reject nominees to the WCCCF's board of trustees.  This fact, along with others, caused Judge O'Connor to rule that "the Foundation, in essence, is an instrumentality of the College."

Among the records the plaintiff requested were the minutes of the Foundation's Board of Trustee meetings.  The WCCCF's attorney, Suzanne M. Marasco, said that although she had not seen the requested minutes, she felt that it might be unfair for them to be publicly released because the WCCCF Board, when those meetings were held, was operating under the assumption that the minutes would never be made public.  Luers countered that the minutes should be treated like a public body's executive session minutes, i.e. they were presumed to be publicly disclosable, but that certain portions may need to be redacted to protect legitimate confidentiality and privacy concerns.  O'Connor directed both attorneys to submit briefs on whether or not the minutes should be disclosed.

Carroll v. Phillipsburg Town
Docket no. WRN-L-397-12

 
At issue: Plaintiff requested a machine readable computer file of the town's 2011 payroll report.  The town offered to provide plaintiff, at no cost, with its report in PDF format, which, unlike a report provided in Excel, CSV or a delimited text file, is not easily searchable, sortable or capable of being filtered.  According to the town, its third-party payroll administrator, ADP, assesses the town a $150 fee to produce the report in the requested machine readable format--which would need to be paid by the plaintiff in order to get the report in that format.

Result:  Judge O'Connor ruled that PDF is a "meaningful medium" in accordance with N.J.S.A. 47:1A-5(d) and satisfied plaintiff's request, even though plaintiff would have to retype the data contained in the report in order to create her own machine readable and manipulable file.  Given this holding, the issue of whether the $150 fee was excessive was not reached.

Carroll v. Pohatcong Township
Docket no. WRN-L-413-12


At issue: In a sworn statement, Francesco Pagano, a former Township police officer testified that a police lieutenant "sexually assault[ed] two officers at work."  Is the report and other records related to this alleged assault subject to disclosure under OPRA or the common law?  Also, is the written agreement that Pagano and Pohatcong entered into at the time of his separation from employment disclosable as a public record?

Result: Hearing postponed until February 15, 2013.



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