Thursday, May 28, 2015

Passaic discloses Internal Affairs log

In response to a judge's order arising out of an Open Public Records Act (OPRA) lawsuit (Richard Rivera v. City of Passaic, et al, Docket No. PAS-L-462-15), the City of Passaic (Passaic County) Police Department has disclosed a redacted log showing the disposition and case number of all Internal Affairs matters processed by the Department between 2011 and 2014.  That log is on-line here.

The log does not disclose the name of the officers charged or the complainants.  But, it still reveals some useful information, such as that out of the 25 excessive force complaints brought against officers in the four year period, 19 resulted in "exonerated," 3 in "unfounded," 2 in "not sustained" and 1 as "administratively closed."

Tuesday, May 26, 2015

Administrative Law Judge finds that Fire District records custodian did not willfully violate OPRA.

In an April 23, 2015 written opinion, New Jersey Administrative Law Judge Susan M. Scarola ruled that a former Commissioner for Franklin Township (Somerset County) Fire District No. 1 did not "knowingly and willfully" violate the Open Public Records Act (OPRA).  The judge did find, however, that the District is liable for $7,828.95 in attorney fees and costs borne by the OPRA requestor.

The opinion, which is on-line here, concerned Jeff Carter's OPRA request for Financial Disclosure Statements filed by fire commissioners between 2000 and 2011.  The District's records custodian at the time was Melissa Kosensky who ceased being a Commissioner in 2012 after having lost her election.  Well after the expiration of OPRA's seven business-day response period, William T. Cooper, the Fire District's attorney at the time, advised Carter to make his request to the Franklin Township Clerk because FDS filings are done through that office.

Carter filed a Denial of Access complaint with the Government Records Council (GRC) on April 4, 2011.  From subsequent OPRA requests, Carter learned that the District did possess four FDSs from 2007 in its files and that Kosensky was aware their existence as of January 27, 2011.  Carter contended that Kosensky willfully withheld the four FDS forms from him and argued that she should be fined for a knowing and willful OPRA violation.

Judge Scarola found that Kosensky was negligent in not immediately providing the four 2007 FDS forms to Carter and for relying on Cooper to respond to Carter.  But, Scarola wrote, "having had the opportunity to observe Kosensky’s demeanor throughout the course of these proceedings and during her testimony, she did not impress me as anything other than a worker who was doing her job to the best of her ability without an ulterior motive of denying Carter to access to records he requested."  Thus, the court held that Carter was not able to prove Kosensky's "actual knowledge that the actions were wrongful and a positive element of conscious wrongdoing" and declined to levy a fine against her.

Judge Scarola did find, however, that Carter, having prevailed in the OPRA case, was entitled to legal fees and costs.  She awarded Carter's lawyer, Walter M. Luers of Clinton, $315 per hour for 23.9 hours spent on the case plus $300.45 in costs for a total of $7,828.95.

Scarola's ruling will stand unless the GRC modifies or rejects it.

Ocean judge orders Stafford to identify denied documents.

In a May 25, 2015 ruling, Ocean County Assignment Judge Vincent J. Grasso ordered Stafford Township to produce a "Vaughn index" that identifies and describes the nature of each record that it claims to be exempt from disclosure.  Background on the suit is on-line here.

In his opinion, which is on-line here, Grasso notes that "a Vaughn index is necessary for plaintiff to advocate his case under both OPRA and the common law. The Township provided no information about the documents that it withheld from disclosure, but merely argu[ed] the confidentiality requirements under the personnel record exemption."

Judge Grasso also rejected Stafford's cross-motion that sought a declaration that my lawsuit was frivolous.  Grasso wrote that "the court finds that plaintiff has a legitimate basis for his litigation and his claim cannot be dismissed as frivolous as this juncture."  My blog entry on Stafford's frivolity claim is on-line here.

I was represented in the suit by C.J. Griffin.

Thursday, May 14, 2015

Judge: Bound Brook teacher must be made party to OPRA case.

Somerset County Assignment Judge Yolanda Ciccone, by way of a May 11, 2015 letter, directed my lawyer to bring former Bound Brook art teacher Kimberly Charnuska into my Open Public Records Act (OPRA) lawsuit so that "she may place on the record her position to [my] Order to Show Cause."  Ciccone's letter is on-line here.  My lawsuit seeks the "narrative description" from a police report of an October 29, 2014 incident involving a Charnuska (identified as the "Suspect") and an unidentified juvenile (identified as the "Victim").  Background on the suit is on-line here.

GRC issues list of cases pending at either OAL or Appellate Division.

On May 14, 2015, in response to a citizen's OPRA request, the Government Records Council (GRC) issued a list of 53 of its cases that are awaiting action by either the Appellate Division or by the Office of Administrative Law (OAL).  The list, which is on-line here omits only one known case, Scheeler v. NJ Dep’t of Educ., GRC Complaint No. 2014-125, which is pending before the Appellate Division.

Interestingly, 20 of the 53 cases involve either Fire District No. 1 or Fire District No. 2 in Franklin Township, Somerset County.

NJSPCA adopts OPRA request form

People have asked me whether the New Jersey Society for the Prevention of Cruelty to Animals (NJSPCA) is subject to the Open Public Records Act (OPRA).  In order to find out, I submitted an OPRA request to the NJSPCA for its records request form. (All agencies subject to OPRA are required by N.J.S.A. 47:1A-5(f) to adopt a records request form.)

The NJSPCA apparently believes that it is subject to OPRA because it provided me with its OPRA request form, which I've placed on-line here.  Interestingly, the NJSPCA has retained a private company called JB Broadcast Media, Inc. to manage its OPRA requests.  The contract between the NJSPCA and JB is also included at the link above.

I have no e-mail or fax number for the NJSPCA so I filed my request by mail to its New Brunswick address.  JB's contract, however, includes JB's e-mail address and the NJSPCA records I received were e-mailed to me from that address.  Those who wish to request NJSPCA records by e-mail may try submitting their requests to the e-mail address listed on JB's contract.

Wednesday, May 13, 2015

Appeals Court: Town did not prove that surveillance video was exempt from disclosure.

Victor Ashrafi
Appellate Division Judge 
On May 13, 2015, the New Jersey Superior Court Appellate Division, in a published and thus precedential case, discussed public disclosure of security videos taken by a stationary camera in a municipal building.  The decision, in Patricia Gilleran v. Township of Bloomfield, is on-line here.

In an opinion authored by Judge Victor Ashrafi, the three-judge panel rejected Bloomfield's generalized claim that disclosure of the videos would "jeopardize security of the building or facility or persons therein" or violate the rights of confidential informants and domestic violence victims who may be detected by the camera when they enter the municipal building.  Bloomfield conceded that township officials had not viewed the fourteen hours of recordings Gilleran requested.

The court, however, was careful to point out that its holding was limited to this particular set of facts.  The court noted that future cases might be decided differently if a municipality were to allege specific instances where crime victims and confidential informants might be identified or where security weaknesses, such as a camera's blind spots, would be disclosed.  The court said that each case has to be judged on its specific facts.

Finally, the court held as "impractical" Gilleran's argument that Bloomfield needed to review the entire fourteen hour recording and pinpoint the specific confidential material.  The court wrote that the "Legislature could not have contemplated that the OPRA disclosure requirement would engage the services of government employees to view video recordings from stationary surveillance cameras for hours upon hours to determine whether they contain confidential or exempt material."

Gilleran's attorney was CJ Griffin of Hackensack and Bloomfield's was Steven J. Martino of Bloomfield.  Amicus American Civil Liberties Union of New Jersey was represented by Stuart J. Young.

Monday, May 11, 2015

Cumberland Prosecutor again reminds municipal prosecutors not to allow improper downgrades.

Jennifer Webb-McRae
Cumberland County Prosecutor
On April 23, 2015, I blogged here about the Bridgeton (Cumberland County) Municipal Court's continued practice of downgrading statutory charges to violations of an municipal code provision that, in addition to being preempted and invalid,  was also renumbered in 2003. I was especially concerned because the Bridgeton Municipal Court continued to process these improper downgrades despite a 2010 warning from Cumberland County Prosecutor Jacqueline Webb-McRae that such downgrades violate a 1998 Attorney General directive.

In response to my complaint, First Assistant Prosecutor Harold B. Shapiro issued an April 24, 2015 memo (on-line here) that again reminded municipal prosecutors of their duty to abide by the 1998 Directive.

I am hopeful that the new memorandum will be more effective than the one issued in 2010.

Middlesex Judge grants access to police dash cam recordings.

On April 7, 2015, Middlesex County Assignment Judge Travis L. Francis ordered the Middlesex County Prosecutor's Office (MCPO) to disclose "video and audio recordings of police pursuits engaged in by members of the New Brunswick Police Department from January 2004 to present."  In a written decision in William J. Brennan v. Middlesex County Prosecutor's Office and James O'Neill, Custodian, Docket No. MID-L-293-15 (on-line here), Judge Francis also upheld the MCPO's denial of Brennan's subsequent request for "all communications regarding [Brennan's previous records request] including [the MCPO's] communications with anyone regarding my request"

In his ruling, Judge Francis rejected the MCPO's contention that the recordings were exempt as "criminal investigatory records."  He wrote that the MCPO had not provided any "articulable concerns of how [the videos'] release would influence an investigation or the role such video would play in said investigation."  He also rejected the MCPO's argument that the request was overly broad. He also ordered that the MCPO pay Brennan's lawyer, Donald F. Burke of Brick, attorney fees of an amount yet to be determined.

But, an April 10, 2015 brief (on-line here) filed by Senior Deputy Middlesex County Counsel Benjamin D. Leibowitz, supported by a Certification by Assistant Middlesex County Prosecutor Thomas K. Mannion (on-line here) urge Francis to reconsider and stay his order so that the MCPO can "file a motion for leave to appeal with the Appellate Division from the Order of April 7, 2015."  As of this writing, the MCPO's motions are still pending.

Saturday, May 9, 2015

Judge Johnson affirms previous ruling: "Brady" letters are to be disclosed.

Judge Johnson's May 8, 2015 order and decision are on-line here and the transcript of the hearing is here. Background on the matter is on-line here.

Friday, May 8, 2015

Lakewood ordered to provide detailed description of denied documents.

Robert Lawson
Lakewood Chief of Police
On March 11, 2015, Donald M. Doherty, Jr. filed a lawsuit on my behalf against the Township of Lakewood (Ocean County) seeking records and reports regarding the apparent "drug use" that caused a Lakewood police officer to resign from his position.  Lakewood refused to describe any of the responsive documents that it admittedly possessed.  Rather, it claimed that "the information requested is confidential information under the NJ Attorney General's Guidelines on Internal Affairs and cannot be released."  My lawsuit is on-line here and my earlier blog describing the officer's alleged drug use and subsequent resignation is on-line here.

On March 20, 2015, Ocean County Assignment Judge Vincent J. Grasso asked Lakewood to provide him with a responsive records so that he could look at them in private (i.e. conduct an in camera review).  After reviewing the documents, Judge Grasso submitted a May 6, 2015 order, on-line here, requiring Lakewood to prepare a detailed certification (i.e. a "Vaughn index") that "itemizes each document requested by plaintiff and articulates the specific basis for its denial of each item."  Without such a description, Judge Grasso held, "plaintiff has no information nor opportunity to effectively advocate his position."

Judge Grasso has scheduled a hearing for June 8, 2015 at 9 a.m.

Monday, May 4, 2015

Let's end government agencies' preemptive OPRA lawsuits against requestors.

The Open Public Records Act (OPRA) requires government agencies to pay the attorney fees of requestors who successfully sue them for disclosure of government records.  The legislature reasoned that the absence of a mandatory attorney fee-shifting provision would give government agencies--who have taxpayer funds to pay attorneys--too much of an advantage over average citizens who pay their lawyers out of personal funds.

Recently, government agencies, in an apparent attempt to circumvent this legislative design, have begun to file lawsuits against citizen requestors before those requestors are given a chance to decide whether they wish to sue the agency under OPRA. The Middlesex County Prosecutor's Office's (MCPO) recent deployment of this tactic will be heard in New Brunswick by Middlesex County Assignment Judge Travis L. Francis on Wednesday, May 20th at 9 a.m.

In this case, two newspapers submitted OPRA requests to the MCPO for recordings of 911 calls to Old Bridge police regarding a 75 year old man who allegedly attacked a family member with knife on January 14, 2015.  According to news reports, the man, Talbot Schroeder, was fatally shot by officers after he allegedly would not put down the knife.

After denying the newspapers' records requests, the MCPO filed a lawsuit seeking a court order that would, in effect, ratify its decision to deny access to the recordings.   Although the two newspapers ultimately filed their own lawsuits to obtain the recordings, the MCPO's lawsuit was filed before the newspapers' suits.

On-line here is a copy of a March 30, 2015 brief filed by Thomas J. Cafferty, attorney for one of the newspapers.  Cafferty's brief, in my view, clearly and persuasively sets forth the reasons why government agencies should not be allowed to file these preemptive OPRA lawsuits.  Among these reasons is that such lawsuits improperly force records requestors to litigate even if they never intended to file a lawsuit seeking disclosure of the denied records.  Cafferty's brief goes on to state that
Allowing a public agency to initiate a proceeding has an even more profound effect - an effect that may well be intended by public agencies. Placing the requestor in the position of defendant not only improperly shifts the burden of proof, but it also prevents the requestor from recovering attorneys' fees, despite a judicial determination that the records are accessible under OPRA. OPRA provides that "a requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee." N.J.S.A. 47:1A-6. This attorney fee provision would not be available to the Newspaper in the instant action.
The MCPO, like several other agencies who employ this tactic, posit that the question of whether the agency pays a requestor's attorney fees turns on which party gets to the courthouse first.  This viewpoint is in direct opposition to N.J.S.A. 47:1A-6, a provision within OPRA, that states that "[t]he right to institute any proceeding under this section will be solely that of the requestor."

Hopefully, Judge Francis will rule against the MCPO's position and help put an end to these preemptive OPRA lawsuits.

Sunday, May 3, 2015

Sealing of OPRA case turns out to have been in error.

On April 30, 2015, I blogged about the Middlesex County Superior Court's sealing of an Open Public Records Act case.  I visited the Civil Division Manager's Office in New Brunswick on both Thursday, April 30, 2015 and Friday, May 1, 2015 and am happy to report that the matter has been resolved and that Docket No. MID-L-1217-15 is now available and searchable on the Court's Automated Case Management System (ACMS).

Below is my e-mail to Assistant Civil Division Manager Ian Ratzlaff that gives a detailed account of why the file was sealed.  The short story is, however, that it was sealed in error.

May 3, 2015
Ian Ratzlaff, Assistant Division Manager
Middlesex County Superior Court Civil Division
56 Paterson St
New Brunswick, New Jersey
RE: Sealing of Docket No. MID-L-1217-15
Dear Mr. Ratzlaff:
Thank you for your voice-mail on Friday. By copy of this e-mail, I also wish to thank Team Leader Andrew Garval for speaking with me about the captioned matter.
By way of background, on April 15, 2015, I found the captioned Open Public Records Act (OPRA) case on the "daily sheets" maintained in the Civil Division Manager's office.  When I later entered the docket number into the Automated Case Management System (ACMS), I was informed that the file was "sealed."  This prevented me, or any other member of the public, from getting any information regarding the case from the on-line system.  Moreover, had I searched by party name, all information about the case, including its existence, would have been suppressed.
Noting the irony of an OPRA case being sealed, I visited your office on April 30, 2015. The gentleman who assisted me said that he would retrieve the file from Assignment Judge Francis' office, review it and let me know which, if any records, I could inspect. He called me the next day and told me that I could come down to the office and review the entire file.
Upon review, I was able to determine that the matter underlying Docket No. MID-L-1217-15 was filed on March 2, 2015 by the Middlesex County Prosecutors's Office (MCPO) in an attempt to preempt OPRA suits that were later filed against that Office by two newspapers.  The MCPO styled its original filing as a "Motion for a Protective Order."  The manner in which the MCPO labeled its filing apparently caused your office to immediately "seal" the file even though no sealing order had been entered by the court.  One of the newspapers' opposition brief, on-line here, sets forth the facts and procedural history.
After reviewing the matter, I have the following comments:
1. The object of the MCPO filing was to prevent disclosure of an audio recording of a 911 emergency call, not its court filing.  This intent was clear from even a cursory reading of the filed documents.
2. Even if the MCPO had sought to suppress its filing, no order had been entered granting that relief.  According to R.1:38-11, "a court record may be sealed by court order for good cause." (emphasis supplied)  The rule goes on to state that documents in normal civil files "may not be filed under seal absent a prior court order mandating the sealing of such documents."  (emphasis supplied)  Accordingly, even if a party to a lawsuit seeks to have a document sealed, no such sealing shall occur unless and until a court order is signed.
3. Transparency concerns regarding sealed records are exacerbated when, as here, a person who did not have the docket number could not have even determined that the file had been sealed.  During the sealing period, a member of the public who searched for "Middlesex County Prosecutor" in the ACMS would have not discovered the existence of this file.  It is one thing for the court's computer to state that the contents of a file are sealed.  It is quite another for the computer system to not even acknowledge that the sealed file exists.
I understand that sealing this particular file was a result of a clerical error.  Yet, it underscores a need for procedural safeguards to prevent the improper sealing of future cases.  Among these safeguards could be: a) no file is sealed from view in the ACMS absent a court order, and b) a list of all sealed files should be publicly available so that members of the public may know which sealed files exist so that they can challenge the sealing order pursuant to R.1:38-12.

Please review the issues presented and let me know your thoughts.  Thank you for your attention to this matter.
Very truly yours,