Thursday, March 26, 2015

Ocean Prosecutor ordered to pay $21,799.56 in attorneys fees and costs in police dash cam OPRA case.

In a March 24, 2015 written opinion, on-line here, Ocean County Superior Court Assignment Judge Vincent J. Grasso ordered the Ocean County Prosecutor's Office to pay an Open Public Records Act (OPRA) requestor's attorney $21,799.56 in fees and costs.

Attorney Walter M. Luers of Clinton, the recipient of the fee award, represented requestor Shabsi Ganzweig in his lawsuit against Lakewood Township and the Prosecutor's office.  Judge Grasso ruled that Luers was entitled to $18,018 in attorney fees (57.2 hours at $315 per hour), plus costs of $398.46 and a "contingency enhancement" of $3,383.10.

Ganzweig had sought police reports and dash-camera recordings regarding two August 31, 2013 traffic stops.  A copy of Judge Grasso's October 2, 2014 decision in that case is on-line here.

Wednesday, March 25, 2015

New OPRA suit: Stafford challenged for not describing denied documents.

A common problem that records requestors face is being denied access to documents that the records custodian refuses to identify or describe. A lawsuit that I filed today against Stafford Township (Ocean County) seeks to enforce the rule that requestors have a right to a reasonably detailed description of each record that is being suppressed rather than just being told, in effect, that "we've determined that the responsive records, if any, are exempt from disclosure."

By way of background, two Stafford police officers sued the Township alleging that a sergeant's promotion exam was administered unfairly. As part of their claim, they asserted that another Stafford officer had "admitted to committing unlawful acts" and that Police Chief Joseph Giberson III "withheld this information."

I submitted several Open Public Records Act (OPRA) requests to Stafford seeking information regarding the officer's alleged "unlawful acts."  After learning that no charges were filed in court against the officer, I posited that the public had a paramount interest in learning what, if any, "unlawful acts" the officer committed so we (i.e. the public) could determine whether the decision to not file court charges against the officer was reasonable or the result of preferential treatment.  When I asked Stafford for "any writings that describe or otherwise reference any 'unlawful acts' committed by" the officer, I was informed by Township Attorney Christopher J. Dasti that Stafford Police had created an internal affairs file for this officer in 2013, that "any documents . . . would be contained in [the] internal affairs file" and that all "such documents are confidential and exempt from disclosure."

In my response, I explained to Dasti that just because a document is in an internal affairs file does not necessarily mean that it is exempt from disclosure--for example, documents that were created prior to the internal affairs investigation are not confidential.  I asked Dasti "to identify each record that exists and then give me a detailed explanation as to why the Township can’t provide me with even a redacted version of it."  Without such a description, I explained, I was unable to determine whether or not my records request was being properly denied.  In his reply, Dasti bluntly said, "As I have previously indicated . . . the internal affairs records are exempt from disclosure under OPRA. Therefore, the Township cannot respond to your request.”

It is possible, of course, that Dasti might be correct that each and every record in the officer's internal affairs file is exempt from disclosure.  But, unless records requestors are given a general description of each withheld record, they will be unable to challenge a custodian's blanket assertion that that the requested records are exempt from disclosure.  If the manner in which Dasti denied my request carries the day, then every OPRA request can be defeated by a generic, non-specific claim of privilege.  And, under a common law right of access balancing test, how could a requestor ever argue that his or her right to disclosure exceeds the government's need for confidentiality if the requestor doesn't know the nature of the record at issue?

My lawsuit and brief, filed by CJ Griffin of Pashman Stein in Hackensack, is on-line here.  The matter will be heard by Judge Vincent J. Grasso at 1:45 p.m., May 12, 2015 in Toms River.

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 Schmidt v. Cape May County Technical School District
Cape May County, Docket No. CPM-L-356-14
Hon. James P. Savio, J.S.C.
March 23, 2015
Click here for the court's decision.

Summary:  Court ruled that requestor was entitled to a) school board's resolution that terminated Charlotte Giles from her employment, b) the agenda of the meeting at which Giles' termination was voted upon and c) executive session minutes of meetings where a proposed settlement with Ms. Giles was discussed (except for matters within the attorney-client privilege.  Court also ruled that Schmidt's attorney, Walter M. Luers of Clinton, is entitled to have his fees and costs paid by the school district taxpayers.

Sunday, March 22, 2015

Misuse of "motion to table" can result in Meetings Act noncompliance.

Richard A. Mola
Mayor of Elmwood Park
Following is my letter to Elmwood Park (Bergen County) Mayor Richard A. Mola and the Borough Council:

March 22, 2015

Hon. Richard A. Mola, Mayor and members of the
Elmwood Park Borough Council
182 Market St
Elmwood Park, NJ
via e-mail only

Dear Mayor Mola and Council members:

I invite your attention to the manner in which the Mayor and Council handled a motion to "table" at the Borough Council's February 19, 2015 meeting.  The meeting is on-line here and the portion of the video I refer to begins at 06:37 and ends at 07:42.

After Resolution 76-15, which sought a $30,000 expenditure for engineering services, was moved and seconded, Councilman Stephen Martino questioned the cost and wanted to "table" the pending motion to allow for further discussion with the engineering firm.  After the "tabling" motion was seconded, Mayor Mola started to ask for discussion on the motion and then abruptly said "no discussion" and went immediately to a vote.  The motion to "table" ultimately failed.

What occurred here is a common misuse of the motion to "Lay on the Table."  According to Roberts Rules of Order, Newly Revised 10th Edition, the motion to Lay on the Table is to be used only to set a pending question aside temporarily "when something else of immediate urgency has arisen."  According to RONR (10th ed.) p. 202, l. 4-6, "[the motion to table] is commonly misused . . . in place of the motion to Postpone Indefinitely, to Postpone to a Certain Time or other motions."

Councilman Martino wasn't seeking to delay consideration of the question because "something else of immediate urgency had arisen."  Rather, his stated purpose in making his "tabling" motion was to allow the Council more time to have discussions with the engineering firm.  Thus, his motion really was, and ought to have been considered, one to Postpone to a Certain Time rather than one to Lay on the Table.

So, what's the big deal?  I am writing because
By adopting a motion to Lay on the Table, a majority has the power to halt consideration of a question immediately without debate.  Such action violates the rights of the minority and individual members if it is for any other purpose than the one stated in the first sentence of this section (i.e. to set a pending question aside temporarily when something else of immediate urgency has arisen.  (RONR (10th ed.) p. 202, l. 8-13)
Note that Mayor Mola--apparently erroneously accepting the motion as one to Lay on the Table--did not allow any debate or discussion on Councilman Martino's motion.  And, such suppression of debate and discussion motivates me to write to you about this issue.  Had Councilman Martino's "tabling" motion passed, a debate on the main question would have been terminated.  But, had Councilman Martino correctly stated his motion as one to Postpone to a Certain Time (or had Mayor Mola accepted the motion as one to Postpone to a Certain Time), it would have been both debatable and amendable. (RONR (10th ed.) p. 174, l. 19-27).  Accordingly, discussion was suppressed that should have occurred.

Given that Councilman Martino's "tabling" motion failed, no serious harm was done.  However, absent correction, the Mayor and Council could, in the future, incorrectly pass a Motion to Lay onkk the Table when a Motion to Postpone Indefinitely was in order.  Such would allow a Council majority to effectively kill a motion proposed by a minority without having to discuss or debate the merits of the minority's proposal.  Prevention of this result is especially important in a municipality like Elmwood Park where the Mayor and Council consist of four from one political party and three from another.

The Legislature passed the Open Public Meetings Act because
the right of the public to be present at all meetings of public bodies, and to witness in full detail all phases of the deliberation, policy formulation, and decision making of public bodies, is vital to the enhancement and proper functioning of the democratic process. (N.J.S.A. 10:4-7.)
The Elmwood Park Council's misunderstanding of the Motion to Lay on the Table works against this Legislative pronouncement by suppressing discussion and debate that ought to have occurred.  Accordingly, I ask that the Mayor and Council review Robert's Rules of Order--particularly the sections dealing with the Motion to Lay on the Table--to ensure that the motion is used properly in the future.

Very truly yours,

​John Paff
P.O. Box 5424
Somerset, NJ  08875
Voice: 732-873-1251
Fax: 908-325-0129

Wednesday, March 18, 2015

OPRA lawsuit against Lakewood Township

Robert Lawson,
Lakewood Chief of Police

Attorney Donald Doherty recently filed a lawsuit on my behalf seeking records that would shed some light on the apparent "drug use" that caused a Lakewood police officer's resignation.  I blogged about the the officer's resignation here.

After learning that the officer engaged in "drug use," I then confirmed that no criminal charges were filed against him.  This led me to wonder whether the decision to not file criminal charges against the officer was reasonable or a case where law enforcement "decided to 'protect one of their own' from suffering the draconian penalties that we who are not employed by law enforcement have to deal with when we elect to ingest a substance that is not approved by the government." (quoted from my records request.)

The lawsuit, order to show cause and brief are on-line here.  The matter will be heard on May 7, 2015 at 2 p.m. by Judge Grasso in Toms River.

Tuesday, March 10, 2015

Theft charges against Margate Firefighter are imminent

On November 22, 2014, I blogged about my Open Public Records Act (OPRA) lawsuit against the Atlantic County Prosecutor's Office that sought access to records related to a Margate firefighter's alleged misappropriation of approximately $50,000 from the local chapter of the Firefighters Mutual Benevolent Association (FMBA).

In a December 17, 2014 order, Judge Nelson C. Johnson declined to rule on my entitlement to the records but instead gave the prosecutor until March 9, 2015 to wrap up its investigation.  On March 9, 2015, I received a copy of the Atlantic County Law Department's letter to Judge Johnson (on-line here) advising him "that an arrest has not yet been made, but it will be made in a very short time."

I did not publish the letter on my blog lest it might substantially damage a law enforcement objective (e.g. perhaps my blog would alert the suspect and cause him to flee).  So, I informed Assistant Atlantic County Counsel Elizabeth C. D'Ancona that I would publish her letter at 4:30 this afternoon (March 10, 2015) unless she informed me that such publication would jeopardize the prosecutor's case.

At 4:17 today, she sent me an e-mail that stated:
I have just been advised that the defendant was charged with 2nd degree official misconduct and 2nd degree theft. I will be sending Judge Johnson a letter advising him of same shortly.
More information, including the name of the firefighter charged, should soon appear on the Prosecutor's press release site, on-line here.

Friday, March 6, 2015

Mother of school principal's alleged victim supports my OPRA lawsuit. Ocean Prosecutor resorts to ad hominem attack.

On February 2, 2015, I blogged about my lawsuit against the Ocean County Prosecutor's Office seeking information on what caused Galloway Township (Atlantic County) elementary school principal John Gibson to abruptly take an unpaid leave of absence (and eventually resign) a few days after being interviewed at the Little Egg Harbor Township (Ocean County) police station.  On February 11, 2015, I blogged that Gibson, since his resignation, was receiving a $7,834.50 a month pension check.

Four things have happened since those blogs were written:

First, my lawyer, Walter M. Luers of Clinton, filed an amended complaint asserting my right not only to the incident and investigation reports but also to a redacted video recording of Gibson's interview at the Little Egg Harbor police station..

Second, the Prosecutor's Office moved to dismiss my complaint and in so doing decided to direct an ad hominem attack toward me.

Third, Luers replied to the Prosecutor's motion and, importantly, submitted a certification from the minor student's mother (known only as Jane Doe) supporting my effort to dislodge records from the prosecutor.

Fourth, Judge Vincent J. Grasso held a hearing on March 3, 2015 at which he directed that the student's mother and the Atlantic County Prosecutor's Office be formally brought into the case so that they can argue why the requested records should or should not be publicly disclosed.  Once Luers advises these other parties of Grasso's decision, Grasso will schedule another hearing.

All of the subsequently filed documents are on-line here.

The filed papers start to paint a picture of what occurred.  In his brief, Prosecutor Joseph D. Coronato confirmed that the Little Egg Harbor Police Department contacted the Special Victims' Unit of his office in January 2014 regarding "an allegation made by a parent of [an elementary school student] concerning possible inappropriate conduct with the school principal, John Gibson."  Coronato also stated that after an investigation, which included Gibson being interviewed on video at the Little Egg Harbor police station by one of his detectives, his office decided to not file any criminal complaints against Gibson.  Yet, Coronato referred the matter to the Atlantic County Prosecutor's Office in March 2014.  Coronato's brief, unfortunately, also directs the following ad hominem attack toward me:
There is no question that [Paff] has engaged in some fishing expedition under the guise of promoting his somewhat celebrity status as New Jersey's self-proclaimed open public records advocate, all at the expense of the privacy interests of other individuals who certainly prefer that their identities remain anonymous. 
Yet, the mother of the elementary school pupil with whom Gibson allegedly conducted himself inappropriately filed a certification stating that the Coronato's office had called her after I had filed my lawsuit to "urge Mr. Paff to drop his lawsuit and not seek these records."  Rather than abiding by Coronato's request, she actually supported my lawsuit.  In her words:
However, I am very unhappy with how this matter has been treated by the Prosecutor's Office and am upset with the lack of progress of the case, including the absence of charges . . . I agree with Mr. Paff's goal of shedding more light on this matter [and it] is my understanding that Mr. Paff's lawsuit does not seek the identify of the victim.
Jane Doe, thank you for supporting my efforts and please know that I would never reveal, or try to reveal, your identity or that of your child.  All I've ever wanted to know is the nature of Gibson's conduct and whether or not Coronato's office treated him appropriately.

Thursday, March 5, 2015

Four more organizations seek to join my e-mail OPRA case against Galloway.

On October 27, 2014, I blogged about the New Jersey State Association of Chiefs of Police ("NJSACOP") entering as an amicus curiae or "friend of the court" into Galloway Township's appeal of a trial court's ruling that I am entitled to logs showing the  sender, recipient, date and subject line of each e-mail sent by a specific government employee during a specified period of time.

Recently, four other organizations have also sought to participate in the case: the New Jersey State League of Municipalities, the New Jersey Institute of Local Government Attorneys, the American Civil Liberties Union of New Jersey and the Electronic Frontier Foundation.  The League and Institute filed a joint brief which is on-line here and the ACLU's and Foundation's joint brief is on-line here.

The League and Institute argue that while e-mails themselves are public records, a log of those e-mails "does not exist in a natural state, cannot be retrieved as is, but can only come into existence or be created by the operation of a computer to produce a log . . ."  Accordingly, they argue, a log of e-mails "does not fit within the definition of a 'government record' as set forth in [OPRA]."

The ACLU and EFF brief takes issue with Galloway Township's "remarkable contention that 'computer data does not constitute a government record'" and notes that "since the vast majority of government information is stored on computers, this argument (if adopted) would effectively destroy the right of New Jersey's citizenry to gain access to public information."  The ACLU/EFF brief goes on to argue:
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 (or, here, the preparation an e-mail log). Especially in this information age, any other result would effectively eviscerate the public's rights.