Friday, December 20, 2013

Judge orders disclosure of most information in Warren "Generator-Gate" case.

Update:  

The Appellate Division, on December 8, 2015, affirmed Judge O'Connor's ruling.

Update:

Judge O'Connor significantly revises her "generator" decision

Judge O'Connor called both attorneys in Paff v. Warren County Prosecutor's Office today and held a Case Management Conference via telephone at 4 p.m. today (Monday, December 23, 2013).  The judge's purpose in calling the conference was to modify her previous order so that the identities of the official(s) who misused the county-owned generators would also be redacted from the documents that will provided in the case.  Judge O'Connor's amended order is on-line here.

O'Connor's December 18, 2013 order stated that the Prosecutor's office "shall redact from the documents the names of any person who provided a statement to [the Prosecutor's office], as well as his or her position of employment, birth date, home and cellular telephone numbers, home address, and any personal identifier." 

We believed that the intent of this provision was to protect the confidentiality of any witnesses or whistleblowers who may have turned in the officers who actually misused the generators.  O'Connor clarified today, however, that she is including the perpetrators themselves among those whose identities will be kept from the public.

In a decision rendered December 18, 2013 and released today, December 20, 2013, Warren County Superior Court Judge Amy O'Connor (now elevated to the Appellate Division) ruled that I am entitled to most of the records pertaining to an investigation of a Warren County jail officer's improper use of a county-owned generator to service his own residence during power outages caused by Superstorm Sandy.

O'Connor's two-page Order and eight-page written decision in Paff v. Warren County Prosecutor, Docket No. WRN-L-34-13 are on-line here.  My complaint, certification and brief in this case, filed by the Law Offices of Walter M. Luers, are on-line here.

The Warren County Prosecutor's Office (WCPO), the defendant in the case, had withheld thirteen documents when responding to my Open Public Records Act (OPRA) and common law right of access request.  Judge O'Connor upheld the WCPO's right to withhold the thirteen records under OPRA but ordered it to release each of the thirteen records, in whole or part, under the common law right of access.

"Compared to OPRA, a broader class of documents is available under the common law, although on a qualified basis," O'Connor ruled.  After balancing the public's interest in disclosure against the government's interest in confidentiality and individuals' rights to privacy, the judge ordered disclosure of all thirteen records but allowed for certain redactions to be made to some of them.

The matters that the judge ruled confidential are: a) the names, birth dates, home addresses, telephone numbers and information that describes the employment positions of witnesses and b) two bullet points on a three-page memo from Undersheriff Kenneth J. McCarthy to Sheriff David P. Gallant regarding an internal affairs investigation into the officer, which the judge ruled was "deliberative."


The WCPO must disclose the documents to me with sixty days.  The WCPO may, however, file an appeal and seek to stay disclosure of the records pending appeal.





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