Sunday, November 3, 2013

Two recent OPRA cases: One win and one still pending decision

On Wednesday, October 30, 2013 and Friday, November 1, 2013, respectively, separate Superior Court judges heard argument in Paff v. Ewing Township (Mercer County) and Paff v. Galloway Township (Atlantic County). 

Ewing:

At issue in the Ewing case was whether the amount a police officer makes in "extra duty" pay is subject to disclosure.  (Extra duty pay is earned when an officer provides police services (such as traffic control duty) to a private person or company (such as a utility company).) 

Ewing took the position that since the source of extra duty pay is private rather than public funds, that extra duty pay is a non-disclosable personnel record and that disclosure would violate the officer's right to privacy.  Attorney Richard Gutman and I argued that extra duty pay is part of an officer's non-exempt "payroll record" as defined by N.J.S.A. 47:1A-10 and a police officer has no legitimate privacy interest in earnings derived from work done in uniform. 

On the personnel record claim, Mercer County Assignment Judge Mary C. Jacobson ruled that OPRA does not limit disclosure of payroll information to only those payments that have government funds as their source.  She held that OPRA, which must be construed in favor of openness, mandates disclosure of each financial element of a government employee's paycheck regardless of its source.

On the privacy interest, Judge Jacobson found that any privacy interest an employee has in his or her finances is outweighed by the public interest in knowing the employee's salary so that citizens can properly perform their watchdog role. 

Ultimately, she ordered Ewing Township to provide me with an unredacted version of the record that they previously provided.  The redacted version is on-line here.

Galloway:

At issue in the Galloway case is whether a government agency is required to produce an e-mail log showing the sender, recipient, date and subject line of each e-mail sent by a specific government employee during a specified period of time.  An example of the kind of log I requested, which was generated by Galloway in 2012, is on-line here.

While conceding that it previously produced e-mail logs and still has the capability of doing so, Galloway, citing Logue v. Borough of Fieldsboro, GRC Case No. 2008-223, argued that producing a log would require it to create a new record that does not already exist.  Attorney Walter Luers and I argued that since the Township's e-mails are digitally stored on a computer, any report that can be queried from the e-mail system is a public record available under OPRA.

Atlantic County Judge Nelson C. Johnson was clearly intrigued by the issue and asked both parties to submit additional briefs.  He is expected to rule on the matter before the end of the year.

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