Tuesday, December 29, 2015

Tinton Falls Police Lieutenant's Internal Affairs record partially revealed.

John A. Scrivanic
Tinton Falls Police Chief
On November 23, 2015, I blogged about Tinton Falls Police Lieutenant Kevin Pierson settling his whistleblower lawsuit against the Borough for $527,500.  I subsequently learned of another lawsuit, filed by Tinton Falls Officer Thomas Dennehy, that shared some of the same alleged facts contained in Pierson's lawsuit.  (Dennehy's lawsuit is still active as of this writing.)

Paragraphs 90 and 91 of Dennehy's lawsuit, set forth below, allege that Tinton Falls Police Lieutenant Dean Duane, who was hired by the Department in 1989 and who made $168,719 in 2015, was involved in three incidents that resulted in Internal Affairs files being opened.

90. Defendants also promoted Dean Duane, an officer with an extensive and significant history of physical and verbal altercations implicating his fitness for duty, including the following: (a) a physical altercation at work with a co-worker in or about 2004; (b) an off-duty incident where the officer attempted to hang onto the bus when it pulled away, followed the bus, and thereafter engaged the bus driver in a verbal altercation; and (c) an on-the-job incident in or about September 2010 wherein Duane slapped Plaintiff in the face.
91. Upon information and belief, on or about January 4, 2011, Duane punched a handcuffed sixteen-year-old juvenile in the face after responding to a call. Upon information and belief, the juvenile received a black eye and a broken nose and, the juvenile's mother has initiated the process to file an Internal Affairs (IA) complaint against Duane.
On December 4, 2015, I filed an Open Public Record Act (OPRA) request for documents that would prove or disprove the existence of these Internal Affairs matters involving Lieutenant Duane. On December 22, 2015, I received a comprehensive response from the Borough.

Many of the records that were responsive to my request were denied due to various exemptions.
Those records are described in a Vaughn Index that was provided to me by the Borough.  The remaining records, as well as the Vaughn Index itself, however, demonstrate that Lieutenant Duane was involved in the following three IA matters:

IA File 2008-08 (School bus incident).

According to a police narrative report, an unnamed school bus driver reported a September 16, 2008 confrontation with Duane to police.  According to the driver's report, Duane stood "in the middle of the road" and attempted to stop the bus after the driver apparently did not pick up a child who "was laying in the driveway and wouldn't get on the bus."  The driver claimed that after he refused to let Duane on the bus and started to drive off (because the driver "didn't know what [Duane] was going to do"), Duane "jumped onto the bus and was hanging from the passenger side mirror."  The driver said that Duane met him at the school and "attempted to confront him."  There is no indication of how the IA matter was resolved.

IA File 2010-05 (Slapping Dennehy in face).

No records were provided in response to my request.  But, the second page of the Vaughn Index indicates that eight pages of "correspondence, memoranda and witness statements" regarding the incident exist but were determined to be exempt from disclosure.

IA File 2011-02 (Punching juvenile in face).

Police narrative reports filed by Duane and another officer state that on January 4, 2011 Duane, after having handcuffed a sixteen year old boy who allegedly had taken several different drugs, "punched him in the face with [his] right hand in an effort to control him."  While difficult to read, a July 18, 2011 letter from Monmouth County Assistant Prosecutor Gregory J. Schweers closed the IA file at least in part because of the boy's refusal to cooperate with the investigation.

Monday, December 28, 2015

Thirty-day retention limit established for government video surveillance recordings.

At its September 17, 2015 meeting, the State Records Committee approved changes to state, county and municipal Records Retention Schedules requiring routine video surveillance recordings to be retained for a period of thirty days.  The requirement covers "real-time footage of buildings, grounds, and physical properties that are owned or controlled via leases or other contractual arrangements by the" government agency.  The thirty-day period is extended, however, if an incident, such as a slip and fall, motor vehicle accident or crime, is captured on the footage.  In such a case, the agency must defer to appropriate law enforcement record retention schedules.

I became interested in this issue after Washington Township (Gloucester County) Clerk Jill McCrea denied my request for surveillance recordings because the Township's cameras automatically re-recorded and thus overwrote videos every seven days.  When I questioned Gloucester County Municipal Clerks Association President Patricia A. Frontino about the propriety of such a short period of video retention, she wrote in an April 21, 2015 e-mail: "As you already know, the State Records Council [sic] has no requirement for the amount of time a video surveillance recording is to be retained.  Therefore, each municipality is left to establish their own time."

Not satisfied with Frontino's response, I reached out to John Mitch who is president of the Municipal Clerks' Association of New Jersey.  Mr. Mitch informed me that the State Records Committee was actively considering a thirty-day retention period.

According to the State Records Committee minutes, the New Jersey Department of Transportation tried to get a waiver from the thirty-day requirement based on its belief that its current video equipment lacked "the capacity to store images beyond 7 days."  The waiver request was denied and Records Committee member Joseph Klett, who serves as Chief of State Archives, remarked that granting this waiver would undermine the whole schedule.

Friday, December 18, 2015

Only OPRA requestors, not custodians, are allowed to initiate OPRA actions.

In a December 18, 2015 published, thus precedential decision, the Appellate Division of the New Jersey Superior Court held that:

1. OPRA grants the right to sue only to the records requestor. Thus, a records custodian may not sue a records requestor in order to enforce the custodian's asserted right to withhold records.

2. Similarly, but for different reasons, a custodian cannot sue a requestor to establish that records are not available to a requestor under the common law right of access.

3. Both OPRA and the common law require disclosure of documents containing the name of a firefighter who applied for financial relief from the New Jersey State Firemen's Association and its Local relief association and the amount of the relief award.  This ruling is based on the specific facts of this case which involved relief payments made to a volunteer firefighter who was fired from his Township job after he "was found to have viewed pornographic images on a fire district computer."  It does not grant access to the names and amounts of relief received by any other relief applicants.

The opinion in this case, Jeff Carter v. John Doe, is on-line here.

Wednesday, December 16, 2015

Port Authority to comply with OPRA.

In response to my Denial of Access Complaint filed with the Government Records Council (GRC), the Port Authority of New York and New Jersey conceded that it is subject to the Open Public Records Act (OPRA) as a result of legislation passed by both the New Jersey and New York legislatures earlier this year.

In her December 16, 2015 submission to the GRC, Authority Secretary Karen E. Eastman wrote that the Authority's duty to comply with OPRA has "been under close review" since the enactment of the bi-state legislation and that the Authority's Board of Commissioners will vote to implement procedures to handle OPRA and New York Freedom of Information Law requests at its next meeting.

According to the filing, Eastman is the Authority's designated OPRA custodian and records requests may be submitted to her via e-mail at keastman@panynj.gov.

Thursday, December 10, 2015

Judge denies NJSPCA's reconsideration motion. Chides it for trying "to get a 'second bite at the apple.'"

A "motion for reconsideration" is supposed to be filed only when a court failed to consider evidence or made a ruling that was "based upon a palpably incorrect or irrational basis."  Such motions are not supposed to made when a lawyer wants to assert arguments that he or she didn't make in the first go-around or when the lawyer simply disagrees with the judge's ruling.

Yet, that is exactly what lawyer Harry Jay Levin of the Toms River law firm of Levin & Cyphers tried to do.  And, Middlesex County Assignment Judge Travis L. Francis wasn't buying it.

Judge Francis had issued a August 28, 2015 order and decision finding that the New Jersey Society for the Prevention of Cruelty to Animals (NJSPCA), after having conceded that it was subject to the Open Public Records Act (OPRA), was not allowed to charge a "labor fee" for fulfilling requestor Collene Wronko's records request.  In that decision, Judge Francis ruled that Wronko's requests "are not too burdensome or amount to an 'extraordinary' expense of time."

Apparently not happy with ruling, Levin filed a motion for reconsideration arguing that the records Wronko sought were not disclosable under OPRA because a Department of Treasury manual exempts its records from access and because Wronko's request wasn't specific enough.

Judge Francis, in a November 20, 2015 ruling, denied the NJSPCA's motion because it was "an attempt to get a 'second bite at the apple.'"  Regarding its argument that Wronko's request lacked specificity, he wrote that the NJSPCA already "had two opportunities to present its argument that [Wronko's] OPRA requests were insufficient" and that a "Motion for Reconsideration is not the appropriate vehicle for [the NJSPCA] to now raise these issues."

Wednesday, December 9, 2015

Unpublished Appellate Division OPRA opinion.

"Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals. Unless somebody calls attention to them, 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.

John Paff v. Warren County Prosecutor's Office
Warren County, Docket No. WRN-L-0034-13
Trial Judge: Hon. Amy O'Connor, J.S.C.
December 8, 2015
Click here for the Appellate Division's decision.
Click here for trial court rulings

Summary:  Appellate Division affirmed trial court's order disclosing certain records pertaining to an investigation of sheriff officers who used county-owned generators for their personal use during Superstorm Sandy.
Update: December 28, 2015:
The Warren County Prosecutor's office called my attorney, Walter Luers, this morning and advised that a) that office (as opposed to County itself) will be taking over the case, b) it is going to petition the New Jersey Supreme Court to hear its appeal of the Appellate Division's disclosure ruling and c) that it will seek to extend the 30 day stay that the Appellate Division set for disclosure of the records.
Since such motions for stay extensions are almost always granted, I consented to the stay extension.
 Update: April 29, 2016:
 The Warren County Prosecutor's petition to the Supreme Court was denied.

Sunday, November 29, 2015

Despite legislation, Port Authority of NY/NJ still not honoring OPRA.

Update 02/02/17: In its January 31, 2017 Order, the Government Records Council (GRC) ruled that the records custodian for the Port Authority of NY/NJ violated the Open Public Records Act (OPRA) by advising me that he needed an extension of "at least three weeks" to review my OPRA request.  This was after my earlier requests made on June 26, 2015 and July 22, 2015 were ignored.  The GRC also ruled that the Authority violated OPRA by failing to adopt a proper OPRA request form and instead published an internal records request form that the GRC said "could be misleading to the public as a deficient or misleading form."  The GRC ordered the Authority to adopt a proper, complaint OPRA request form and to submit a certification that such a form has been adopted within five business days.  CJ Griffin of Hackensack is my attorney in this matter.  (The Shostack settlement agreement was provided to me prior to the GRCs decision.)
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Since July of 2012, I have been trying to get a copy of the settlement agreement that resolved Hanna Shostack's lawsuit against the Port Authority of New York and New Jersey.  Shostack said that she was fired because she was not affiliated with the Republican Party.  She claimed that Cruz Russell, her supervisor at the Port Authority, told her "that the decision to discharge her came straight from Governor Christie's office and there was nothing he could do to save her job."

The Port Authority, which was not until recently subject to the Open Public Record Act (OPRA), blocked my attempt to get the settlement agreement at every turn.  I recently renewed my efforts after legislation was passed in both New York and New Jersey that subjected the Port Authority to OPRA. My first two requests were ignored and, in response to my third request, I was told on October 21, 2015 that the Port Authority was "processing the request under the Port Authority's Freedom of Information Code," and that they "anticipate[d] that it will take at least three weeks for us to review your request and respond to you."  (As of today, November 29, 2015, I have received nothing further from the Port Authority).

Since the Port Authority is violating OPRA, I, represented by Hackensack attorney CJ Griffin, filed a Denial of Access Complaint with the Government Records Council.  Hopefully, this will cause the Port Authority to start honoring OPRA requests in a timely manner.

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.

Robert Verry v. Borough of South Bound Brook
Somerset County, Docket No. SOM-L-817-15, SOM-L-1046-15
Hon. Yolanda Ciccone, A.J.S.C.
November 2, 2015
Click here for the court's decision.

Summary:  Requestor submitted eight records requests. Records Custodians found to have violated OPRA regarding two of those requests and Judge Ciccone required further submissions on the remaining six requests--most of them on the "specific issue of whether records being not 'currently available' requires a response from the custodian within seven days of the initial request."  Court ruled that custodian must provide log of e-mails in response to a request.  The Court appears to have imposed an additional burden on OPRA requestors who seek to recover their attorney fees.  According to the decision, counsel fees are to be awarded when "the purpose of OPRA was vindicated by the litigation."  Judge Ciccone said that she "remains unconvinced that all of [Verry's] requests vindicate the purpose of OPRA."  While Verry "articulated a reason for requesting the records related to" some of his requests, he "has not set forth any justification for seeking the requested records" in other cases.  Judge Ciccone said that she "fails to note how production of the additional records furthers OPRA's purpose."  Thus, she agreed to award partial attorney fees.

Saturday, November 28, 2015

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.

Patricia Gilleran v. City of East Orange
Essex County, Docket No. ESX-L-5212-15
Hon. Stephanie A. Mitterhoff, J.S.C.
October 28, 2015
Click here for the court's decision.

Summary:  East Orange must accept OPRA requests by either fax or e-mail and cannot restrict requestors to mailing or hand-delivering their requests.

Passaic County sued for prompt access to settlement records.

On November 23, 2015, Richard M. Gutman of Montclair filed an Open Public Records Act (OPRA) lawsuit on my behalf seeking prompt disclosure of records regarding the settlement that resolved a lawsuit against the Passaic County Sheriff's Department.  While the lawsuit was marked "settled" by the court on October 9, 2015, the County was still denying my request as late as November 9, 2015 because the settlement agreement had not been fully signed and finalized.  Gutman's filing is on-line here.

I often write about settlements of lawsuits against public agencies and officials on my NJ Civil Settlements blog.  Newspaper reporters, after reading my blog, frequently publish articles about the settlements I discover causing that information to be distributed to a wide audience.  This lawsuit is important because being delayed several weeks or months in obtaining settlements causes them to lose news value.

The settled lawsuit at issue in my case was brought by Sergeant Daryl Walton of the Passaic County Sheriff's Department. Walton claimed he was retaliated against after investigating a complaint that Acting Sheriff Charles S. Meyers had allegedly engaged in voter fraud.

Wednesday, November 25, 2015

Oceanport police punt records destruction investigation to school lawyer.

On February 17, 2015, I asked Detective Gregory A. Lauretta, Jr. of the Oceanport (Monmouth County) Police Department to consider bringing criminal charges against former Oceanport School Business Administrator Norma M. Tursi.  I based my request on a September 17, 2014 sworn certification by current School Business Administrator Dennis W. Kotch in which he said that Tursi ordered that various Board records be shredded despite the fact that "appropriate forms for the destruction of records were not submitted to the New Jersey Division of Asset [sic] and Record Management and that no records of what was destroyed were kept."  I pointed out that Tursi's actions may have violated the Destruction of Public Records Law, N.J.S.A. 47:3­-29, which states that any person who "defaces, mutilates or destroys with malicious intent any public record shall be guilty of a high misdemeanor."

In response to my request for the status of the investigation, Detective Lauretta said that the matter was "referred over to the Board of Education’s Attorney, Armen McOmber [who] would then follow up on this incident and decide what action to take, if any."

I take this to mean that the police will not be filing criminal charges against Tursi.

Tuesday, November 17, 2015

OPRA lawsuit seeks police Internal Affairs "Index Files."

Mitchell A. Little
Toms River Police Chief
On Friday, December 11, 2015, 2:30 p.m., Ocean County Superior Court Robert E. Brenner will hear argument on a pair of cases that challenge the Toms River's and Seaside Park's refusal to disclose their police departments' Internal Affairs "Index Files" to an Open Public Records Act (OPRA) requestor.

Police Index Files, examples of which are on-line here, are tables that list factual information, such as the complainant's name, the officer's name, nature of the conduct complained about and a unique control number, for each Internal Affairs complaint that a police department receives.  CJ Griffin of Hackensack, who is representing plaintiff Richard Rivera in the case, has submitted a brief that clearly outlines the issued in the case and argues that at least redacted versions of the Index Files should be disclosed.

The New Jersey Attorney General has entered into this as an amicus curiae (friend of the court) and has joined Toms River and Seaside Park in arguing that records should be suppressed.

The hearing, which is open to the public, will be held in Courtroom #4 at the Courthouse at 100 Hooper Avenue, Toms River.  Those who wish to attend are cautioned to telephone the court at 732-506-5300 the day prior to the hearing to confirm that the hearing hasn't been cancelled or adjourned.  Refer to Docket Nos OCN-L-225-15 and OCN-L-452-15

Sunday, November 15, 2015

NJ Supreme Court to determine OPRA's applicability to security camera footage.

Stuart Rabner
Chief Justice
On November 6, 2015, the New Jersey Supreme Court agreed to hear Bloomfield Township's (Essex County) appeal of a May 13, 2015 Appellate Division ruling that required the Township to provide an Open Public Records Act (OPRA) requestor with 14 hours of video taken by a stationary camera located on the back of Bloomfield's municipal building.

In its July 10, 2015 submission to the Supreme Court, Bloomfield argued that the Appellate Division's ruling would burden public agencies that have security cameras by requiring them to watch hours and hours of recorded videos in their entirety to determine whether they contain confidential or exempt material.  This burden, according to Bloomfield, "could result in governmental entities simply turning off their video surveillance equipment, or not increasing their security measures, simply to avoid" having to watch hours of recorded video requested under OPRA.

Saturday, November 14, 2015

Court to determine disclosure of investigative records related to allegations of misconduct by Cape May Sheriff.

Gary G. Schaffer
Cape May County Sheriff
On Tuesday, December 8, 2015 at 10:30 a.m. Mercer County Assignment Judge Mary C. Jacobson will hear oral argument in the case of John Paff v. New Jersey State Police, et al, Docket No. MER-L- 1984-15.

At issue are two State Police investigation reports pertaining to allegations that Cape May County Sheriff Gary G. Schaffer was involved in misconduct or impropriety while he worked at the Cape May Police Training Academy and the Ocean City Aquatic Center.

The State Police have admitted that it possesses two investigation reports into Schaffer's alleged misconduct but refused to release them because they are "exempt from access as criminal investigative records."  My lawyer, CJ Griffin of Hackensack, argues that under the common law right of access citizens have a great need to see the records so they can assure themselves that the allegations were fairly investigated and not just swept under the rug.

When Shore News Today reporters asked Sheriff Schaffer last year for a comment on the investigation, he was quoted as having said that he would “not comment on a blog.”


Friday, November 6, 2015

Memory hole located in Bloomfield Township.

Update: In its February 1, 2017 report, the Municipal Court Practices Committee rejected my December 1, 2015 request for a rule change that would resolve the problem set forth below.
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Today, I learned that the Bloomfield Municipal Court (Essex County) did not prepare a formal complaint (called a CDR or special form of complaint) in 2012 when a citizen sought to file a complaint against a police officer from Middlesex County.  Rather, the Bloomfield court recorded the citizen's complaint on its own informal "Complaint Information Form."

CDRs and special forms of complaint each bear a unique control number and must be entered into the Automated Complaint System (ACS) (i.e. the municipal court's centralized computer system) when completed.  This allows cases to be identified by and tracked through the ACS.  An example of a CDR is on-line here.

Bloomfield's "Complaint Information Form," however, is just a letter-sized piece of paper which bears no control number and is not entered into the ACS.  This means that a person who queries the ACS for a complaint will not find it if it was recorded on Complaint Information Form instead of a CDR or special form.

The complaint at issue was brought by Joseph Scurese against Bernadette Yates.  It was found to have probable cause by the Bloomfield Municipal Court and proceeded to mediation.  Yet, no CDR or special form of complaint ever issued.  Had I not learned about Scurese's complaint from reading his civil lawsuit, I would have never been able to find it by querying the ACS.

Sunday, October 25, 2015

Teaneck Township Council Executive Session minutes on-line.

Many municipal councils, including Teaneck Township (Bergen County) put their public meeting agendas and minutes on their websites.  Unfortunately, town councils very rarely put their closed or executive meeting minutes on-line.

As a public service, I have obtained redacted versions of the Teaneck Council's executive session minutes from April 2013 through June 2015 and have placed them on-line here.  The resolutions that the Council passed in public to authorize these closed sessions are on-line here.

Saturday, October 24, 2015

Fired Bound Brook teacher settles grievance against school board.

On September 16, 2015, a Bound Brook High School art teacher who was fired last November settled a grievance that she and her union had filed against the Bound Brook Board of Education.

In the Settlement Agreement and General Release, the teacher, Kimberly Charnuska, agreed to fully release the Board "from any and all claims, known and unknown, resulting from anything which has happened."  In return, the Board agreed to keep "any investigation records and notes relating to allegations of misconduct" out of Charnuska's personnel file.

The release appears to be related to a "suspicious incident" that Bound Brook High School Principal Dan Gallagher reported "a possible inappropriate relationship between a student and a teacher" to police on October 29, 2014.  Charnuska was the "suspect" listed on the police report and the alleged victim was a juvenile. Charnuska was suspended with pay on the same day was terminated on November 24, 2014.

Wednesday, October 21, 2015

Court: Citing FERPA, without more, is sufficient to justify sixty-three redactions.

In an October 20, 2015 oral decision, Mercer County Assignment Judge Mary C. Jacobson dismissed an Open Public Records Act (OPRA) case that challenged the legality of the New Jersey Department of Education's (DOE) justification of sixty-three separate redactions from two special education settlement agreements with the following blanket explanation: "The records have been redacted to protect the reasonable expectations of privacy related to student identification/confidentiality rights under Family Education Rights and Privacy Act ("FERPA") 20 U.S.C.Sect. 1232g and N.J.A.C. 6A:32-7.1, et. seq."  Judge Jacobson held that the DOE's invocation of "FERPA," without more, was sufficient.  Her written order is on-line here.

While the nature of many of the redactions at issue in the case of Paff v. New Jersey Department of Education, et al, Docket No. MER-L-1523-15 could be determined by the context of the sentence containing the redaction, others could not.  My brief, authored by CJ Griffin of the Hackensack-based Pashman Stein law firm, used the following two sentences from the agreement that settled P.A. and J.A. o/b/o A.A. v. Millburn Township Board of Education and Madison Board of Education, OAL Docket No. EDS-18665-2013N as an example:
The District agrees to reimburse Petitioners five thousand ($5,000) toward the educational costs of [REDACTION] for November 2011 through October 2012. The reimbursement shall be provided to the parents within 30 days of receipt of invoices, [REDACTION], and proof of payment. . 
While the first redaction is clearly the student's name, the second redaction appears to be the type of documentation that the parents need to provide in order to receive reimbursement.  It is difficult to see how disclosure of this reimbursement prerequisite could reveal the student's identity.

An October 8, 2015 certification by DOE Records Custodian Donna Fletcher-Lugo provides a bit more, but not much, additional information on the nature of each redacted element.

Tuesday, October 20, 2015

Appeals court to rule on whether OPRA requests are OPRAable


On June 2, 2014, I submitted an Open Public Records Act (OPRA) request to the New Jersey Motor Vehicle Commission (MVC) seeking "all OPRA requests submitted to the MVC between May 5, 2014 and May 12, 2014."  The MVC denied my request because disclosure would allegedly give "an advantage to competitors."  With Walter M. Luers of Clinton as my attorney, I sued the MVC and on October 26, 2014, Mercer County Superior Court Assignment Judge Mary C. Jacobson ordered the MVC to disclose the week's worth of OPRA requests and to pay Luers his attorney fees, which were later agreed to be $3,000.  On March 20, 2015, the MVC appealed Judge Jacobson's ruling and on August 17, 2015 filed its brief.  Luers filed his responsive brief on October 19, 2015.

The MVC's argument centers on the 2005 Appellate Division case of Gannett New Jersey v. County of Middlesex, et al., 379 N.J. Super. 205.  This case involved a newspaper's OPRA request for federal subpoenas issued to Middlesex County and the county's responses to those subpoenas.  In his written decision, Appellate Judge Stephen Skillman stated the following:
OPRA does not authorize a party to make a blanket request for every document a public agency has provided another party in response to an OPRA request or, in this case, a federal grand jury subpoena. Such a request seeks access not merely to public records but also into the nature and scope of a third party's inquiry to a government agency.
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In addition to whatever interest a government agency may have in maintaining the confidentiality of its records, a party who requests access to public records also may have an interest in maintaining the confidentiality of its inquiry. This need for confidentiality is particularly strong when the party requesting the production of documents is a law enforcement agency such as the United States Attorney's Office.
* * *
Moreover, the interest of third parties in protecting the confidentiality of their requests for access to public documents is not limited to law enforcement agencies. Suppose Gannett suspected that another news organization was conducting an investigation into a public agency's financial practices and had sought production of documents under OPRA in connection with that investigation. Could Gannett make a blanket request to the public agency for the production of all records provided to the other news organization?
The MVC's argument is that disclosing copies of OPRA requests that others have filed may violate those requestors' rights to keep the nature and scope of their inquiries confidential.

Lawsuit seeks names of police officers who shot 14-year-old.

A lawsuit filed today in Mercer County Superior Court seeks the identities and other information regarding officers from the State Police and Mercer Sheriff's Department who fired fifteen shots at Radazz Hearns, now 15, on August 7, 2015.  Seven of the shots struck Hearns, causing him to be hospitalized for a week.  Despite public outcry and controversy over whether Hearns actually possessed a gun at the time he was shot, law enforcement officials have refused to identify the police officers who fired the shots.

On October 15, 2015, both Isaac Isaac Avilucea of the Trentonian and Keith Brown of NJ Advance Media published articles claiming that their investigations found that Doug Muraglia and James Udijohn were the officers who shot Hearns  When asked to confirm the information in Brown's article, Deputy Attorney General Ryan C. Atkinson refused to do so and claimed that any lawsuit filed to obtain the officers' names would be frivolous.

The lawsuit is captioned John Paff v. Office of the Attorney General, et al., was filed by C.J. Griffin of Hackensack-based law firm Pashman Stein.

Saturday, October 17, 2015

Asserted suicide risk shields repeat DWI offender's name in court records.

On January 5, 2015, Carmen Messano, Presiding Judge of the Appellate Division of the New Jersey Superior Court, granted the motion of female sports official, who sought to set aside two drunk driving convictions, to be identified in the court's decision by her initials instead of her full name.

According to a November 3, 2014 brief filed by Toms River defense attorney Thomas Cannavo (the redactions are mine), the woman "became highly anxious" after learning that the Appellate Division's decision in the matter "would be affirmatively published on the court's website and that the decision would be available on an Internet 'Google' search."  According to a letter from the woman's psychiatrist, publication of the matter on the Internet would "increase the risk of suicidal thoughts and actions."  Cannavo argued that exposing the woman's name and drunk driving conviction history to the public "is likely to cause [her] serious injury.  Potential suicide is extremely serious and the resulting harm is irreversible."

According to the Appellate Division's April 10, 2015 decision, C.L.M. failed field-sobriety tests and and blew a .21% on an Alcotest after she rear-ended another car in Somerville on April 15, 2006. She blew a .24% when she was again pulled over by Somerville Police on June 6, 2006.  Noting that these two drunk driver offenses constituted the woman's third and fourth drunk driving convictions, the municipal court judge sentenced her to pay fines, serve two concurrent, 180-day jail terms and suspended her license for twenty years.

While I have learned the woman's name through a series of Open Public Records Act (OPRA) and judiciary records requests, I have chosen not to publish it out of concern that such publication might cause the woman to commit suicide.  Yet, I believe that this case--even without disclosure of the woman's name--is of public interest because it highlights how differently C.L.M--a repeat drunk driving offender--was treated from most other drunk driving arrestees.

Nobody appreciates having his or her name published in the newspaper for a drunk driving arrest or conviction.  It is highly embarrassing and would cause anyone a great deal of distress.  But even a cursory search of the Internet shows that police blotters, which list all types of arrests, are published daily.  For example, the October 16, 2015 blotter published in Bloomfield Life (on northjersey.com) shows that Joseph Skidmore, 31, of Bloomfield was charged on October 11, 2015 "with several counts of careless driving, reckless driving, driving under the Influence of alcohol and leaving the scene of an accident."

Even though he hasn't yet been convicted, Skidmore's name is now indelibly linked to this drunk driving arrest.  There is no statute of limitations on Internet publication.  Even years from now, a Google search on "Joseph Skidmore Bloomfield alcohol arrest" will disclose this matter.  But, before publishing his name, I seriously doubt that the staff writers at Bloomfield Life contacted Skidmore to determine whether he was under psychiatric care and, if so, whether the police blotter publication might push him over the edge.

I understand that Skidmore's case is distinguishable from C.L.M.'s because his involved a police blotter publication and hers involved publication of an Appellate Division decision.  Had the Somerset County newspapers picked up on C.L.M.'s two 2006 DWI arrests, her name would have already been outed and she probably would have never filed the motion to have the court publish only her initials.

Yet, I can't help but notice a stark contrast between how Skidmore (and hundreds of thousands of others) are pilloried in the press for an arrest while C.L.M.'s identity was protected by Judge Messano even though she was four times convicted of drunk driving.

While this contrast is not necessarily a problem that needs to be solved, or even one that can be solved, one change that I have sought is an amendment to the New Jersey Rules of Court to establish guidelines and set uniform standards when courts are asked to use initials instead of a party's full name.  On April 16, 2012, I made a formal request for such a rule change to the New Jersey Supreme Court's Civil Practice Committee.  In my request, I used as an example the Appellate Division's November 15, 2011 decision in State v. O.M., Docket No. A-6196-09T1 in which the court inexplicably shielded a third-degree theft defendant's name from its written opinion.  In its 2014 report, the Civil Practice Committee rejected my proposal holding that the amendments I sought "are unwarranted at this time."

Thursday, October 15, 2015

Lawsuit seeks names of candidates who vied for Trenton prosecutor position.

Trenton Mayor
Eric E. Jackson
On December 15, 2015, 10 a.m., Mercer County Assignment judge Mary C. Jacobson will hear argument on whether the City of Trenton must disclose the identities and resumes of those who sought to become the City's chief municipal prosecutor but were passed over for that position.  

At issue in Paff v. City of Trenton, et al, Docket No. MER-L-2152-15 is the proper interpretation of Executive Order No. 26 which was issued by Governor James McGreevey in 2002.  According to the Executive Order, while the resume of the successful candidate is a public record after the position has been filled, the resumes of those who didn't get the position may be disclosed "only where the unsuccessful candidate has consented to such disclosure."  Walter M. Luers of Clinton is my attorney in the matter.

In my July 23, 2015 Open Public Records Act (OPRA) request for the unsuccessful candidates' resumes and identities, I argued that since the City refused to disclose the names of those who sought the chief prosecutor's position, I had no way of knowing whether or not those candidates consented to the release of their resumes.  I specifically asked the City, if it denied my request, to "set forth the basis of [its] knowledge that the candidate who submitted the resume does not consent to its disclosure."  Unfortunately, City officials denied my request without addressing whether or not the unsuccessful candidates consented to disclosure of their resumes or were even asked for their consent.

The appointment at issue is controversial.  The City appointed Kimberley Wilson as chief municipal prosecutor earlier this year.  In a news article about the appointment, the Trentonian described Wilson as "a former city attorney with no previous experience as a prosecutor who was forced out as interim law director in 2011 by now-convicted former Mayor Tony Mack and later resigned from another position in Hoboken."  I believe it is in the public's interest to know the identities and qualifications of the other candidates so that the public can better determine if the City's selection of Wilson was reasonable and prudent.

Wednesday, October 14, 2015

Pinelands Commission settles OPRA case filed by watchdog group.

On May 20, 2015, the New Jersey Pinelands Commission agreed to settle a July 2014 Open Public Records Act (OPRA) lawsuit filed by the Pinelands Preservation Alliance.  At issue was the Alliance's March 4, 2014 OPRA request which sought records related to a Memorandum of Agreement between the Commission and the New Jersey Board of Public Utilities regarding construction of a controversial natural gas pipeline in the Pinelands region.  The OPRA request, which was submitted on the Alliance's behalf by Pennington attorney Michael L. Pisauro, contained sixteen numbered paragraphs each seeking a separate category of records.

In its May 30, 2014 response to the OPRA request, the Commission, noting that Pisauro and Theresa Lettman reviewed the file on May 12, 2014 and scanned certain documents within it, denied the request for being "overly broad, redundant or fail[ing] to identify" the records sought. While some records were disclosed with the response, access to other, unidentified records was denied based on the inter-agency, advisory or deliberative (ACD) exemption.

In its brief, the Alliance argued that its requests were reasonably specific and could not be subject to the ACD exemption because they were between the Commission and the BPU, which it described as being "in essence the applicant in this instance."  "If all communications between an applicant and the Commission are deliberative the Commission has found a way to circumvent a vast majority of the OPRA law," Pisauro argued on the Alliance's behalf.  Pisauro also argued that the Commission's failure to "clearly identify which documents they believe to be deliberative" is a "fatal flaw in the Commission's response."

The Settlement agreement discloses that after the lawsuit was filed, the Commission produced additional records on September 15, September 29, October 9, October 22, October 23 and November 20, 2014.  While the records later disclosed are not identified, any person could obtain them by submitting an OPRA request.  The Commission also agreed to pay $4,000 to Pisauro for his legal fees.

The lawsuit, brief and settlement agreements are on-line here.

Thursday, October 8, 2015

Councilman seeks access to texts and e-mails Councilwoman sent and received during meeting.


Sayreville Councilman
Art Rittenbouse
On September 24, 2015, a Sayreville Borough (Middlesex County) Council member filed a Government Records Council (GRC) complaint after the the Borough denied him access to e-mails and texts a colleague sent and received during the August 24, 2015 Borough Council meeting.

The complainant is council member Art Rittenhouse who requested member Victoria Kilpatrick's texts and e-mails by way of an August 28, 2015 Open Public Records Act (OPRA) request.  Assistant Borough Clerk Jessica Morelos forwarded the request to Kilpatrick who responded that "no e-mails or text messages were exchanged on my borough phone."  In his complaint, Rittenhouse noted that Kilpatrick's response did not address texts and e-mails sent and received during the meeting on her personal phone.

In the Borough's August 31, 2015 denial letter, Borough Attorney Michael R. DuPont claimed that disclosure of Kilpatrick's texts and e-mails would violate the Borough's duty "to safeguard from public access a citizen's personal information."  "Councilwoman Kilpatrick's cell phone is a personal cell phone and the Borough of Sayreville has no control over that device or the information contained therein."

In his complaint, Rittenhouse claimed that DuPont had him and Mayor Kennedy O'Brien submit their private e-mails and phone records in response to a 2014 OPRA request.  Rittenhouse alleged that DuPont responded to his recent request in a "partisan manner and not in the interests of the Borough of Sayreville."

DuPont's conclusion appears to be contrary to the GRC's 2005 decision in Meyers v. Borough of Fair Lawn, GRC Case No. 2005-127. There, the GRC held that whether an e-mail sent or received on an official's personal computer is a government record turns on the nature and content of the e-mail and not on whether the computer is public or private.

Saturday, October 3, 2015

GRC requires city to accept either faxed or e-mailed OPRA requests.

On September 29, 2015, the Government Records Council (GRC) ruled that the City of East Orange must accept Open Public Records Act (OPRA) requests by either fax or e-mail and cannot restrict requestors' OPRA submissions to regular mail or hand-delivery.

In the case, Dello Russo v. East Orange, the GRC held that East Orange's "policy of banning submission of OPRA requests electronically represents an unreasonable obstacle on access."  It held that while the City did not need to accept OPRA requests by both fax and e-mail, it must accept some form of electronic submission.

This decision clarifies the Appellate Division's May 21, 2009 decision in Paff v. City of East Orange. There, Appellate Division Judge Stephen Skillman affirmed the GRC's ruling that "there is no basis for concluding that East Orange's form, which only prohibits submission of OPRA requests by fax, but allows submission by mail or 'electronically,' imposes any undue burden upon parties who seek the disclosure of government  records under OPRA."







Friday, October 2, 2015

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.

Christine Rampolla v. Hatikvah International Academy
Middlesex County, Docket No. MID-L-4441-13
Hon. Travis L. Francis, A.J.S.C.
September 16, 2015
Click here for the court's decision.

Summary:  1. The Advisory, consultative and deliberative (ACD) privilege only applies to the formulation of policy, not its execution or to administrative tasks; and 2. Documents that contain ACD and non-ACD material must be disclosed, with the ACD material redacted.  Ms. Rampolla declared prevailing party entitled to attorney fees and costs.


Thursday, October 1, 2015

Middlesex Judge sharply criticizes, but ultimately follows, an Appellate ruling that sealed most police records.

Earlier this year, the Appellate Division issued a decision that drastically restricted public access to law enforcement records.  The decision, in North Jersey Media Group, Inc. v. Township of Lyndhurst, caused Middlesex County Assignment Judge L. Travis on September 21, 2015 to reluctantly reverse his previous order that granted access to police car dashcam videos that recorded 119 pursuits by New Brunswick police that resulted in eluding charges being filed.  Although he was constrained to follow the Appellate Division's Lyndhurst precedent, Judge Francis sharply criticized the decision in William Brennan v. Middlesex County Prosecutor's Office, Docket No. MID-L-293-15.  Judge Francis wrote:

"This Court muses at the notion that OPRA was created to assist those trying to keep a watchful eye over the police in their general duties but if an interaction is documented on an MVR [i.e. dashcam] or body camera, the same would be considered an exempt criminal investigatory record. This Court wearily searches for the boundaries of the "criminal investigatory record exemption 'to no avail.' * * * For OPRA purposes it is clear that an MVR would arguably be one of the best documents to use to keep a watchful eye over government or to get to the facts of a set of circumstances. Now, the news or any inquisitive citizen must understand what happened in an event through a press release, as access to these MVRs is forever barred from OPRA related public access."




Tuesday, September 29, 2015

Parents sometimes need to enforce special education order and consent judgments.

The Office of Special Education, a unit within the New Jersey Department of Education, has a procedure for parents (and their attorneys) to follow when a local school district does not abide by consent judgments and orders that arise out of Individuals with Disabilities Education Act (IDEA) litigation.  That procedure is set forth on the 39th page of the Parental Rights in Special Education manual (or 43rd page of the PDF).

In order to see how often parents need to avail themselves of this procedure, I made an Open Public Records Act (OPRA) request for "all 'Parental Requests for Enforcement of a Final Decision issued by the Office of Administrative Law' filed with the Office of Special Education so far in 2015."  In response, I received documents from the following nineteen cases.  The Office of Special Education denied access to seven additional cases in their entirety claiming an exemption under the Family Educational Rights and Privacy Act ("FERPA") 20 U.S.C. Sect 1232g.



Tuesday, September 15, 2015

Lumberton agrees to new executive session minutes procedure.

In my August 16, 2015 article, I wrote that attorney Ted Rosenberg filed a Motion to Enforce Litigants' Rights against Lumberton Township (Burlington County) because it had--for the second time--lost the minutes of several of the Township Committee's nonpublic (closed or executive) meetings.

On September 8, 2015, Superior Court Judge Marc M. Baldwin signed off on a Consent Order that the Township and I agreed to.  This Consent Order, which is permanent, prescribes a procedure that should ensure that closed minutes are never lost again. It also requires executive session minutes to be approved promptly, reviewed annually and posted on the Township's website.

Lumberton also agreed to pay Rosenberg $1,610 for legal services connected with filing the enforcement motion.

Sunday, September 13, 2015

Lawsuit seeks identity of State Trooper who sought sex from target of arrest warrant.

Update 03/02/16: We lost the case.

At 10 a.m. on Wednesday, October 14, 2015, Mercer County Assignment Judge Mary C. Jacobson will hear argument in Paff v. Department of Law and Public Safety, et al., Docket No. MER-L-1685-15.  This Open Public Records Act (OPRA) and common law right of access case was filed on my behalf by Walter M. Luers of Clinton.

The lawsuit challenges the New Jersey State Police decision to suppress the identity of a State Trooper who resigned or was fired for offering to not execute an arrest warrant in exchange for the warrant's target having sex with him.  The case also seeks the Trooper's resignation letter and a plea agreement that resolved internal charges against the Trooper.  No criminal charges were filed against the Trooper.

The matter will be heard on the 4th floor of the Mercer County Courthouse, 400 S. Warren St, Trenton.  Members of media and public are encouraged to attend and observe but are advised to call the court at 609-571-4499 the day prior to confirm that the hearing date and hour have not changed.

Thursday, September 10, 2015

NJ Assembly bill seeks to require GRC's initial mediation and adjudication of records disputes.

On June 22, 2015, the Assembly Appropriations Committee favorably reported Assembly No. 4435, introduced on May 11, 2015 by Assemblymen John J. Burzichelli (D-West Deptford) and John DiMaio (R-Bridgewater).  If passed, Open Public Records Act (OPRA) requestors who are denied access to a record would no longer be able to take their disputes directly to Superior Court.  Rather, requestors would have to file their complaints with the Government Records Council (GRC) and go through the GRC's mediation process.  If the mediation does not resolve a complaint, the GRC would adjudicate the dispute and "issue an advisory opinion in the matter as to whether the particular type of record is a government record which is accessible to the public."

After completing these steps, an aggrieved requestor would be allowed to file a Superior Court action five days after serving a notice of intent upon the government agency which denied the request.

The bill also seeks a change that will require a public agency to pay a requestor's attorney fees "in the event the Government Records Council opinion determined that the government record had been improperly denied."  According to a strict reading of the proposal, a requestor who wins in Superior Court after losing before the GRC would not be able to get his or her attorney fees paid by the government agency which denied the request.

Friday, September 4, 2015

Englewood Cliffs Mayor violated ethics law, fined $100.

After a three and a half year investigation, New Jersey's Local Finance Board (LFB) concluded that Englewood Cliffs Mayor Joseph C. Parisi, Jr. violated the Local Government Ethics Law (LGEL) and assessed a $100 fine against him.

The matter was originated by a March 7, 2012 complaint filed by John Paff and the New Jersey Libertarian Party.  The complaint alleged that Parisi, who served on the Board of Directors of North Jersey Community Bank and as Chairman of Otterstedt Insurance Agency, failed to recuse himself from the Borough Council's 2010 consideration of a $9.8 million Board of Education budget that voters had rejected.  At the time of the discussions, the Board of Education had active accounts with both North Jersey Community Bank and Otterstedt Insurance Agency. The record reflects that Parisi advocated making "no cuts" the the Board's budget.  The LFB's Notice of Violation along with the complaint are on-line here.

The LFB found that Parisi "had a direct or indirect financial or personal involvement that might reasonably be expected to impair his objectivity or independence."  The Local Government Ethics Law, N.J.S.A. 40A:9-22.9 sets the minimum fine at $100 and the maximum at $500.

Wednesday, September 2, 2015

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.

Collene Wronko v. New Jersey Society for the Prevention of Cruelty to Animals
Middlesex County, Docket No. MID-L-11721-15
Hon. Travis L. Francis, A.J.S.C.
August 28, 2015
Click here for the court's decision.

Summary:  New Jersey Society for the Prevention of Cruelty to Animals, which conceded that it is subject to the Open Public Records Act (OPRA), cannot charge a "labor fee" for fulfilling Ms. Wronko's request.  Ms. Wronko declared prevailing party entitled to attorney fees and costs.

Update:  Another decision, here, holds that the county-level SPCA organization is likewise subject to OPRA.

Tuesday, September 1, 2015

Administrative Judge cites Fire District for Meetings Act violation, requires two lawyers to testify.

 Update September 2, 2015:  I have received new information: Judge Kennedy incorrectly said that, with regard to Assemblyman Danielsen, that both the subpoena and the motion to quash were withdrawn. In fact, it was only the motion to quash that was withdrawn.  During the hearing, the Fire District agreed to produce Danielsen for trial.
In an August 25, 2015 ruling, New Jersey Administrative Law Judge John S. Kennedy held that a Board of Fire Commissioners in Franklin Township (Somerset County) violated the Open Public Meetings Act (OPMA) when one commissioner forwarded two e-mails to all the other commissioners.  In the same matter, Judge Kennedy held that subpoenas requiring two lawyers to testify in an Open Public Records Act (OPRA) matter should not be quashed.

Judge Kennedy's decision arose out of a Denial of Access Complaint Jeff Carter filed with the Government Records Council (GRC) after Franklin Township Fire District No. 1 denied him access to fifteen e-mails that pertained to a personnel complaint filed by Debi Nelson.  Nelson is Carter's sister and the Fire District's former administrative aide.  Carter is being represented by Walter M. Luers of Clinton.

Judge Kennedy ordered disclosure of five of the fifteen withheld e-mails  He ruled that the e-mails dated August 8, 2010 and August 9, 2010 would have been exempt except for the fact that they were sent "from one commissioner to all other commissioners."  According to Judge Kennedy's ruling,
"[t]his is a violation of the Open Public Meetings Act (OPMA) which requires proper notice of a public 'meeting,' discussion, etc., between an effective majority of the fire commissioners conducting 'public business.' The OPMA is specific in its definition of a public body 'meeting' to include any gathering whether corporeal or by means of communication equipment which is attended by or open to all members of the public body held with intent to discuss or act upon a specific public business of that body."   I CONCLUDE that the August 9, 2010 e-mail and the August 8, 2010 e-mail attached thereto violated OPMA and therefore access to those em ails shall be GRANTED."
Judge Kennedy also ruled on the Fire District's June 25, 2015 Motion to Quash the subpoenas to testify that were served upon current Commissioners Jason Goldberg and James Wickman; former Commissioners Bernard Pongratz and (now Assemblyman) Joseph Danielsen as well as attorneys Richard Braslow (misspelled "Barlow" in Judge Kennedy's ruling) and William Cooper who previously served as the Fire District's attorney but is now the Somerset County Counsel.  Prior to Judge Kennedy's ruling, the parties agreed that Danielsen's testimony was not needed and that Goldberg, Wickman and Pongratz would give depositions with the costs split between the parties.

The parties could not agree on whether Cooper and Braslow are required to testify.  Judge Kennedy ruled that although two lawyers' testimony "will surely be protected by the attorney-client privilege and the work product privilege, . . . there may be questions that can be asked that are probative and do not violate the aforementioned privileges."  Accordingly, he denied the Motion to Quash as it pertained to Braslow and Cooper.

Judge Kennedy's decision still needs to be approved by the GRC and is subject to appeal by the Fire District.

Thursday, August 27, 2015

Bound Brook releases CAD report regarding teacher/student "suspicious incident."

I have previously blogged about my lawsuit, filed by Montclair attorney Richard M. Gutman that sought the narrative description from a police report of an October 29, 2014 incident involving a 24-year-old teacher named Kimberly Charnuska (identified as the "Suspect") and an unidentified juvenile (identified as the "Victim").

Today, I received a more narrowly redacted version of the report that discloses the narrative description as stating: "Dr. Gallagher reported a possible inappropriate relationship between a student and a teacher."  The version of the report that I was given before filing my suit had that sentence excised from it.  The lawsuit is now concluded.

Thursday, August 20, 2015

OPRA case seeks job applications filed by eight Camden County cops.

Update: In a January 8, 2016 Order, Judge Michael J. Kassel denied Hardwick's request for relief and dismissed his complaint.
On Thursday, September 24, 2015 at 9 a.m., Camden County Superior Court Judge Michael J. Kassel will hear argument in the case of Darnell Hardwick v. County of Camden, et al, Docket No. CAM-L-3039-15.  At issue is Hardwick's request for job applications filed by Camden County Police Officers Anthony Adair, Stephen Knatz, Lucas Murray, Anthony Rossner, Michael Swangler, Nicole Berry, Lance Carrington and Diana Deren, all of whom were hired in 2013.

While "personnel records" are typically confidential, Walter M. Luers, Hardwick's attorney, argues that the personnel exception in the Open Public Records Act (OPRA) contains an "exception to the exception" which requires disclosure of "data contained in information which disclose conformity with specific experiential, educational or medical qualifications required for government employment."  Thus, Luers argues, while the County may provide Hardwick with redacted job applications, the officers' applications must be disclosed to the extent that they reveal whether or not the officers satisfied training courses and met other job requirements.

Media and the public are invited to attend this hearing which will be held in the County Courthouse at 101 South 5th Street, Camden.  Those who plan to attend are cautioned to call the court at 856-379-2366 the day prior to hearing to ensure that the hearing hasn't been postponed.

Navigating New Jersey's Attorney Disciplinary System.

Many are not aware that the public is allowed to attend and observe disciplinary hearings against New Jersey attorneys.  This article is intended to provide an overview of the disciplinary system and help the public navigate it.

A citizen's first step is to learn which attorneys have active complaints against them.  This can be ascertained by reviewing the Office of Attorney Ethics' on-line Public Hearing List.  This list, which is updated monthly, is a snapshot of active ethics cases pending at the time the list is generated.  Since this list changes every month, I'll use the August 2015 list for the following examples.  Look through the list and see if you know of any attorneys on it.  (While uncommon, it is not unheard of for a public attorney, such as a municipal attorney or prosecutor to appear on this list.)

The 26th page of the list references a pending "Threatening Criminal Prosecution" charge against Camden County attorney Yaron Helmer.  The complaint, which was filed March 20, 2015 (resulting from an investigation that began on November 20, 2012), has been assigned docket number XIV-2012-0606E. In order to find out more about the case, one would need to obtain a copy of the complaint which would contain detailed allegations against the lawyer.

The disciplinary system is administered through several local ethics committee and a centralized Office of Attorney Ethics.  Contact information for all of these is on-line here.  The correct committee an interested citizen should contact is determined by the Roman numeral that begins the matter's docket number.  In Helmer's case, the docket number begins with XIV meaning that the proper office to contact for further information is the Office of Attorney Ethics in Trenton.  A citizen who wanted to know exactly what Helmer did to warrant this charge could send an e-mail to the OAE, such as:
Jason Saunders, Deputy Ethics Counsel
Office of Attorney Ethics
via e-mail only to jason.saunders@judiciary.state.nj.us
Dear Ms. Saunders: 
Would you please e-mail me the formal complaint in XIV-2012-0606E (Yaron Helmer) as well as Helmer's formal answer?
I have already completed this step on Helmer's case and have blogged about the charges against him.

The next step is to learn the date, hour and location of the next public hearing at which the case against Helmer will be presented.  In order to do this, complete this form and submit it to the same official to which you sent your request for the complaint and answer.  As you can see from an e-mail I received from OAE Director Charles Centinaro, the disciplinary system honors such requests and will notify a requestor in advance of the next hearing.

Wednesday, August 19, 2015

Court to decide whether public--or only law enforcement--can access Promis/Gavel's customized reports.

Andrew C. Carey
Middlesex County Prosecutor
Update:  We lost this case, principally due to the court's view that the database belonged to the Judiciary rather than the County Prosecutor.  On-line are the Prosecutor's Opposition, our Reply Brief and the Court's order.
---------------------------------------------
On Wednesday, September 16, 2015 at 9 a.m., Middlesex County Assignment Judge Travis L. Francis will hear argument in Paff v. Carey, Docket No. MID-L-4240-15. This potentially very important case presents the following question:
Are records that can be queried from the data contained within the Promis/Gavel system--New Jersey's automated criminal case tracking system--obtainable under the Open Public Records Act?  
(Of somewhat lesser importance, the case also asks whether reports that have already been queried from Promis/Gavel are subject to disclosure under OPRA.)

Governments increasingly keep information in relational databases that are capable of producing custom reports that users specify.  Governments, however, often believe that the convenience and advantages of custom computerized reports should inure only to the government and not private citizens.

Private parties have legitimate needs for such reports.  Journalists and researchers would clearly find it useful to have access to customized reports showing, for example, all sexual assault arrests in Union County during 2011 through 2014 sorted by municipality. Such availability would greatly help journalists serve their audiences and researchers draw fact-supported conclusions.  As pointed out in the American Civil Liberty Union's and Electronic Frontier Foundation amicus brief filed in my case against Galloway Township,
Members of the public - who, lest we forget, ultimately pay for this technology - should be granted access to the same tools that public agencies use every day - specifically the ability to request a search of its electronic records for specific terms. Especially in this information age, any other result would effectively eviscerate the public's rights.
I am being represented in the matter by Walter M. Luers of Clinton.  Media and the public are invited to attend this hearing but are cautioned to call the court at 732-519-3413 the day prior to hearing to ensure that it hasn't been postponed.

Tuesday, August 18, 2015

Appellate Division shoots down Opderbeck ruling.

Senate Majority Leader
Loretta Weinberg
In an August 18, 2015 published opinion, a three-judge Appellate Division panel reversed Bergen County Superior Court Assignment Judge Peter E. Doyne's prior ruling that required the Midland Park Board of Education to make "copies of any appendices, attachments, reports, and other documents referred to in" the school board public meeting agendas publicly available on the Internet at least forty-eight hours prior to the meeting.  In his December 24, 2013 decision that accompanied the order that the Appellate Division today reversed, Doyne, who has since retired, said that the Midland Park school board's bare agendas were "virtually meaningless" without the attachments and appendices.

Back in 1975, when the Open Public Meetings Act (OPMA) was passed, the Internet was in it infancy and making an agenda's attachments publicly available would have required a significant amount of labor and paper.  The panel noted, however, that disclosing the attachments in today's world "merely requires adding an electronic 'link' to the Board's agenda, which is already posted on its official website." The ease of making this information available made it "tempting" for the panel to require public bodies to provide that link.

The panel found, however, that judges aren't allowed to "amend statutes using [their] own notion of what is in the public's best interest."  Rather, the panel ruled that the courts must enforce statutes as they are written and not as judges feel they ought to be written.  The panel defined a meeting agenda as merely "a list or outline of things to be considered or done."  Since Doyne's ruling required what the statute did not, it was reversed.

On the penultimate page of its decision, the Appellate panel "respectfully suggested" that the legislature consider updating the Meetings Act to reflect the technological changes that have occurred during the forty years since the Act's enactment.  Senate Majority Leader Loretta Weinberg (D-Bergen) has introduced S-781 which would make many important changes to the Meeting Act.  Unfortunately, The bill has hit a roadblock that Weinberg claims was erected by the New Jersey League of Municipalities.

The panel's opinion was written by Presiding Judge Jose L. Fuentes and joined by judges Victor Ashrafi and Amy O'Connor.

Sunday, August 16, 2015

Lumberton Township loses executive minutes again.

Back in 2009, I sued Lumberton Township (Burlington County) because the Township Committee wasn't promptly disclosing the non-exempt parts of its nonpublic (executive or closed) session minutes to the public.  During that action, I learned that Lumberton had completely lost the minutes of all executive sessions held prior to 2003.  The Consent Judgment that resolved my lawsuit took steps to keep Lumberton from losing any more of its executive session minutes.

Earlier this year, I learned that Lumberton again lost its executive session minutes from 2011, 2012 and 2013.  Since Lumberton, by failing to secure its minutes, violated the terms of my 2009 Consent Judgment, I, with Ted Rosenberg of Moorestown as my attorney, filed a Motion to Enforce Litigants' Rights.

In an August 14, 2015 letter, Lumberton Township Solicitor George M. Morris, who was not the Township Solicitor at the time the minutes were lost, described in detail how the 2011, 2012 and 2013 minutes were lost.
As for the missing 2011 through 20l3 minutes, I immediately made inquiry as to whether paper forms of the documents exist. My inquiry included direct discussions with the Municipal Clerk, former Municipal Solicitor and each member of the governing body. I learned that as a standard practice, the governing body and the solicitor were provided paper copies of the minutes before their meetings. They reviewed the minutes and approved the same. Because the minutes were approved, but not yet authorized for release, the paper copies were collected and destroyed. Unfortunately, no paper copy was retained for these specific years, The electronic versions of the minutes were left on a thumb drive and that drive was corrupted, The Township worked with IT specialists to restore the information but it was unrecoverable.
The hearing on my motion is currently scheduled for September 4, 2015.


Sunday, August 9, 2015

Supreme Court Committee mulls rule change to permit OPRA plaintiffs to remain anonymous.

Update 03/02/16: Supreme Court Committee rejects my proposal.

In early 2016, the New Jersey Supreme Court's Civil Practice Committee is likely to decide whether it should recommend an amendment to the New Jersey Rules of Court that would expressly allow plaintiffs in Open Public Records Act (OPRA) lawsuits to proceed in court anonymously.  Also at that time, the Committee's Discovery Subcommittee should decide whether the Committee should recommend a rule change that would require attorneys who submit OPRA requests to obtain records pertaining to pending litigation to also serve copies of those requests to the attorneys for all other parties in the litigation.

The first issue--whether the court rules should recognize the right of an anonymous OPRA requestor to sue anonymously--was prompted by my October 2, 2012 request to the Civil Practice Committee to consider such a rule.  In my request, I raised an August 17, 2012 unpublished trial court decision by Atlantic County Superior Court Judge Nelson C. Johnson in Anonymous v. Borough of Longport, Docket No. L-9552-11 (a copy of the decision is attached to my October 2, 2012 request at the link above).  In his decision, Judge Johnson ruled that OPRA requestors cannot proceed anonymously because the Supreme Court had not yet adopted a court rule granting them that privilege.  Judge Johnson stated that "OPRA has been the law for more than a decade . . . if our Supreme Court thought it appropriate to adopt new court rules to address the Act’s provisions; it was free to do so.”

In my request to the Civil Practice Committee, I pointed out that OPRA specifically grants citizens the right to make anonymous OPRA requests and that this right would be illusory if a records custodian by simply denying an anonymous request could force the requestor to either abandon the request or give up his or her statutory right to remain anonymous.  "OPRA’s grant of a right to remain anonymous means nothing if requestors must waive anonymity in order to enforce their OPRA rights," I wrote.

The Committee discussed my request on page 99 of its January 27, 2014 report to the Supreme Court.  The Committee decided to hold my request over for consideration in the next rules cycle.  Since the Committee works on a two-year cycle, its next report will be due in early 2016.  The other issue--whether attorneys who submit OPRA requests on their client's behalf should be required to serve copies on other attorneys in the case--is discussed on page 98 of the report.