Monday, December 22, 2014

Bad lawyering in Gloucester County OPRA case. Who cares. It's only taxpayers' money.

Update November 27, 2016.   The Government Records Council ordered the fire district to pay $2,370 to requestor's attorney.
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On December 18, 2014, the Harrison Township (Gloucester County) Fire District filed its opposition to my Government Records Council (GRC) complaint.  I've placed both the complaint and the the opposition, filed by the fire district's lawyer, Eric J. Riso, of the Stratford firm of Platt & Riso, P.C. on-line here.  The district's response make me wonder how lawyers get away with (and get paid for doing) such shoddy work.

The case is pretty simple.  I had requested the minutes from two 2013 executive sessions of the Board of Fire Commissioners.  I was denied access by Fire Official Brian A. Bartholomew because he believed that since the executive sessions themselves were held in private, it logically followed that the minutes of those executive sessions must be confidential as well.  This is a common mistake.  The law, however, provides that executive session minutes may only be entirely suppressed in the most unusual case and that in general, redacting certain sentences from the the executive minutes, rather than entirely suppressing them, will suffice to protect the government's interest in confidentiality while still providing the public with the maximum amount of information that can be disclosed.  Unfortunately, advising the fire district of the leading case on this point--Payton v. New Jersey Turnpike Authority, 148 N.J. 524, 557 (1997)--did not change Mr. Bartholomew's mind.  According, with the help of Gibbsboro attorney Anthony H. Ogozalek, Jr., I filed a denial of access complaint with the GRC.

Riso's letter brief, which starts at page 40 of the PDF at the link above, contains three sections of argument and each section gets pretty much everything wrong.

In the first section, Riso incorrectly cites Mason v. Hoboken, 196 N.J. 51 (2008) as disallowing my action because it was filed more than 45 days after my request was denied.  While Mason does establish a 45-day limitations period for filing court complaints, page 63 of the that decision recognizes that as an alternative to going to court, records requestors "may proceed before the GRC, which defendants explain has its own procedures and purposes-and no statute of limitations."

In the second section, Riso completely mischaracterizes the court's decision in O'Shea v. West Milford Bd. of Educ., 391 N.J. Super. 534 (App. Div. 2007) by claiming that it supports suppressing executive session minutes.  The records at issue in O'Shea, however, were not executive session minutes, but the handwritten notes taken by board of education's secretary during an executive session of the board.  In other words, O'Shea pertains to the handwritten notes that are used to prepare the minutes, not to the minutes themselves.  Thus, it has no bearing on this case.

In the third section, Riso makes the buffoonish argument that since I "make no legal argument based on the common law . . . it is the Fire District's position that [Paff] has waived his right to pursue such a claim before the GRC."  He then goes on to argue how I'm not entitled to the minutes under the common law.  Of course, I did not argue the common law to the GRC because the GRC does not have jurisdiction over the common law.  Had Riso bothered to read the GRC's frequently asked questions (FAQ) page he would have learned:
Note that any challenge to a denial of a request for records under the common law cannot be made to the Government Records Council, as the Government Records Council only has jurisdiction to adjudicate challenges to denials of OPRA requests. A challenge to the denial of access under the common law can be made by filing an action in Superior Court.  (Emphasis in original).
In almost any other field of endeavor, incompetence is not tolerated.  For some reason, however, incompetence by legal practitioners is met with greater acceptance--especially when a government agency, instead of a private client, is footing the bill with taxpayer dollars.

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