Friday, June 20, 2014

"Brady letters" sought in OPRA lawsuit

Update: I received a voicemail on June 23, 2014 from a Wildwood Crest official telling me that he doesn't "have a Brady letter [and] never had one." The Prosecutor's May 5, 2014 denial of my OPRA request does not say that separate Brady letters exist for each of the three officials referenced in my OPRA request and named in my civil complaint.  The denial suggests that at least one Brady letter exists concerning at least one of these three officials.  Thus, it is entirely possible that the caller is being truthful in stating that a Brady letter pertaining to him never issued.
 On June 13, 2014, attorney Richard Gutman of Montclair filed a lawsuit on my behalf seeking "Brady letters" from the Cape May County Prosecutor's Office.  My Complaint and Certification in John Paff v. Cape May County Prosecutor's Office, Docket No. CPM-L-265-14 are on-line here.  The County's response is here, the court case that the County attached to its response is here and my reply to the County's response is here.

"Brady letters" are named after the United States Supreme Court's 1963 decision in the case of Brady v. Maryland.  That decision, among other things, requires law enforcement officials to notify criminal defendants and their lawyers whenever they receive information that a police officer involved in the defendants' cases has been untruthful.

For example, suppose that Officer Jones is found to have perjured himself in testifying against Defendant John Doe.  Suppose further that at the time the perjury is discovered,  three other defendants, Roe, Smith and Brown are all awaiting trial on separate charges and that Jones'  testimony will be necessary for successful prosecutions of  these three defendants.  The Brady v. Maryland decision imposes upon the prosecutor, once becoming aware of Jones' perjury, to inform Roe's, Smith's and Brown's defense attorneys about Jones' perjury.  This is because without knowing that  Jones had perjured himself in another matter, Roe, Smith and  Brown would not know to raise the perjury finding in their own trials in order to undermine Jones' credibility.

On April 26, 2014, after hearing that three Wildwood Crest Police officials had "Brady letters" issued for undisclosed reasons, I submitted an Open Public Records Act (OPRA) request for those letters.  In his May 5, 2014 response, Cape May County First Assistant Prosecutor Robert W. Johnson appears to concede that the "Brady letters" exist, but concludes that they are exempt from disclosure under various legal theories.

On May 18, 2014, Attorney Gutman sent Johnson a letter informing him that we would sue of the letters weren't disclosed on or before May 25, 2014.  After not hearing back from Johnson, we filed our lawsuit and are awaiting further proceedings by the court.

At this point, I encourage readers to not read too much into the prosecutor's response or draw any hasty conclusions regarding any of these officers' honesty or credibility.  Rather, I suggest that we all refrain from jumping to conclusions until any "Brady letters" are publicly disclosed.

Wednesday, June 18, 2014

Most of Morales' leniency letters produced

On June 5, 2014, I posted a blog article concerning the Middlesex County court system's decision to redact the senders' names from pleas for leniency for Anthony Morales who had been convicted of and sentenced to three years in prison for having a sexual relationship with a female student. 

Today, I received a letter from the Criminal Division Manager that provided me with unredacted copies of all but one of those letters.  The unredacted letters are on-line here.  Missing, however, is an unredacted version of the August 5, 2013 letter from the defendant's great-aunt and Godmother.  I suspect that the Criminal Division's failure to include this letter is nothing more than an oversight.

Monday, June 16, 2014

Unpublished Appellate Division OPRA opinion.

"Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals. Given that they are not published in the law books, they might 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.

Perry Bolkin v. Borough of Fair Lawn, et al
Sat below: Hon. Peter E. Doyne, A.J.S.C.
Appellate Docket No. A-2205-12T4
Date of Appellate Decision: June 16, 2014
Trial Court Docket No. BER-L-6547-12
Date of trial court decision: December 5, 2012
Click here and here, respectively, for the trial court's and the Appellate Division's decisions.

Summary: Appellate Division upheld trial court's decision that pet owners' names and mailing addresses were disclosable under the Open Public Records Act (OPRA), where the requestor promised that he would not divulge the information obtained to anyone else and to limit his use of the information to send pet owners information through the mail.

Saturday, June 14, 2014

OPRA Lawsuit seeks video of Tuckerton police use of dog to attack woman

On June 10, 2014, Montclair Attorney Richard M. Gutman filed a lawsuit on my behalf challenging the Ocean County Prosecutor's denial of my Open Public Records Act (OPRA) request for a video that allegedly depicts a police officer intentionally siccing his police dog on a 57-year-old woman.  The lawsuit and brief, captioned Paff v. Ocean County Prosecutor, Docket No. OCN-L-1645-14, is on-line here.

I requested the video after reading about Tuckerton Police Corporal Justin Cherry being charged with second-degree official misconduct and third-degree aggravated assault after he "allegedly allowed a K-9 to attack and bite a woman following a traffic stop earlier this year."  The dog attack allegedly occurred on January 29, 2014 and was filmed by a security video camera on the outside of the Barnegat municipal building.  An April 21, 2014 Star Ledger article on the alleged attack is on-line here.

My request for the video was denied by Ocean County Assistant Prosecutor O. Nicholas Monaco on May 28, 2014.  In his letter, Monaco stated that "this office cannot release the requested recording as it involves a criminal investigation in progress, pursuant to N.J.S.A. 47:1A-3 as well as an internal affairs matter, pursuant to the New Jersey Attorney General's Guidelines on Internal Affairs Policy and Procedures."  Gutman and I argue that the tape cannot be shielded from disclosure because it preceded both the criminal and IA investigations.

Monaco disclosed, however, copies of the complaints filed against the woman who was the victim of the alleged dog attack which identify her as Wendy Tucker of Barnegat.

Thursday, June 12, 2014

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.

John Paff v. Galloway Township, et al
Atlantic County, Docket No. ATL-L-5428-13
Hon. Nelson C. Johnson, J.S.C.
June 10, 2014
Click here for the court's decision.

Summary: The question presented was 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. 

The Township's position was that while it was required to produce the e-mails themselves (provided that they weren't otherwise exempt), producing a log would require the Township to create a new record that does not already exist.  The Township argued that OPRA did not require it to create a record but only to provide records that already existed.

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.

Judge Johnson ruled thst "[w]hether termed 'metadata' . . . or not, the fact remains that the emails . . . are public records as defined by the OPRA because they comprise '. . . information stored or maintained electronically . . . that has been made, maintained and kept on file in the course of his or its official business by any officer, commission, agency or authority of the state or any political subdivision thereof' By logical/reasonable extension, a log or list of emails that can be easily prepared, is likewise within the ambits of that definition."

Friday, June 6, 2014

School Board appeals Mercer judge's fee award to pro-se attorney in OPRA case.

In an unusual decision, Mercer County Assignment Judge Mary C. Jacobson on March 5, 2014 awarded a Princeton lawyer his attorney fees on an Open Public Records Act (OPRA) case even though the lawyer represented himself in the action.

In the case, Fisher v. Hamilton Board of Education, Docket No. MER-L-2217-13 (documents on-line here), George W. Fisher of Zuckerman and Fisher, LLC, argued that even though pro-se parties ordinarily do not get paid attorney fees, his case should be an exception because his lawsuit vindicated important public interests rather than his own private rights.

Fisher had sought minutes and other writings that authorized Board President Jeff Hewitson "to participate in and/or speak at the "'Welcome back' by [Superintendent] Dr. [James] Parla to district staff at the beginning of the 2013-2014 school year."  In his brief, Fisher said that he was concerned that the "Welcome Back" event may have been a "campaign podium for [a board member's] re-election" in the Boards November 2013 election. The Board denied the request claiming that it was "overly broad" and a "blanket request for a class of documents which would require an open-ended search of the Board's records."

Jacobson agreed with Fisher and, on December 11, 2013, ordered the Board to either grant or deny the existence of the requested records and declared Fisher the prevailing party and awarded him counsel fees.  In a March 5, 2014 Order, Jacobson established the amount of the fees as $6,295.  The school board did not contest the amount of the fee that Fisher sought but instead maintained the he wasn't entitled to counsel fees at all.

The school board filed its appeal on January 24, 2014 (Appellate Division Docket No. A-2339-13T2) even though the case's final order was not issued until March 5, 2014. 

Thursday, June 5, 2014

Should people who write to a judge to request leniency for a criminal defendant have their identities shielded from public view?

My letter to the Middlesex County Court:

June 5, 2014

Ann Rizzi, ACDM
Middlesex County Courthouse
56 Paterson Street, PO Box 964
New Brunswick, New Jersey 08903
via e-mail only to ann.rizzi@judiciary.state.nj.us

Dear Ms. Rizzi:

I am writing to you at the suggestion of Ombudsman Luis Hernandez, who is copied on this e-mail.

I had previously made a records request to the Middlesex County Criminal Records Division seeking letters of support and requests for leniency regarding Anthony Morales, who was convicted of and sentenced to three years in prison for having a sexual relationship with a female student. See a January 7, 2014 nj.com article on-line here.

Today, after a bit of wrangling, I received an envelope in the mail that contained no cover letter but contained the eight pages that I have uploaded to the Internet at the link here.  As you can see, the letters are redacted such that the senders identities cannot be determined.

I requested the letters after hearing rumors that some elected or other highly placed government officials may have authored some of the letters seeking leniency for Morales.  While I do not know this for sure, I cannot rule it out based on the documents I have received.

I believed at the time of my request, and still believe, that the identities of any government official who may have requested leniency is of public interest.  Regardless of the merits of whether or not Morales deserved leniency, I do not believe that people who write to a Superior Court judge requesting leniency have any legitimate interest in keeping their identities confidential, especially if they are elected officials. Unfortunately, my ability to publicize the authors' identities has been hampered by the redactions.

Would you please either send me unredacted copies of these letters or provide a justification for the redactions that conforms to R.1:38 as well as the public's right to know under the common law right of access?

Thank you for your attention to this matter.

Very truly yours,

John Paff
P.O. Box 5424
Somerset, NJ  08875
Voice: 732-873-1251
Fax: 908-325-0129
e-mail: paff@pobox.com