Wednesday, July 1, 2015

Appellate Division's Lyndhurst ruling claims its first casualty.

Update: On July 11, 2017, the Appellate Division's decision in North Jersey Media Group, Inc. v. Township of Lyndhurst, 441 N.J. Super. 70 (App. Div. 2015) was mostly reversed by the Supreme Court.  The Supreme Court's decision is here.  A summary of the decision is here.
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On June 11, 2015, the New Jersey Superior Court's Appellate Division issued an opinion in North Jersey Media Group, Inc. v. Township of Lyndhurst  which drastically restricted public access to law enforcement records.  On June 25, 2015, Ocean County Superior Court Judge Mark A. Troncone, relying heavily on the Lyndhurst ruling, denied my right to obtain records regarding a police investigation into a former elementary school principal. Troncone's ruling in Paff v. Coronato, Docket No. OCN-L-252-15 is on-line here.

By way of background, John Gibson, a former elementary and preschool principal at the  Arthur Rann and Pomona schools in Galloway Township (Atlantic County), abruptly took a paid leave of absence on January 30, 2014.  Parents were notified by school officials that Gibson was "out on leave" and that "this leave is of a confidential nature."  Gibson, who was receiving his $129,145 annual salary during his leave, formally resigned on March 24, 2014 and began collecting his $7,834.50 monthly pension.

I sought information pertaining to any incident that might have been related to Gibson's departure from employment by making an Open Public Records Act (OPRA) request to the Ocean County Prosecutor's Office.  In his May 2, 2014 response to my OPRA request, Assistant Prosecutor O. Nicholas Monaco confirmed that his office had a file on Gibson but that he could not release it unless and until I obtained a "protective court order" in accordance with N.J.S.A. 2A:82-46(c). This statute grants specific protection to "child victims of sexual assault or abuse."

In his December 8, 2014 response to my subsequent OPRA request, Monoco admitted that a Detective from his office interviewed Gibson at the Little Egg Harbor Police Department on January 27, 2014 (three days before Gibson took his leave of absence) "regarding Mr. Gibson's involvement with a minor."  The detective issued an investigative report on the matter on June 6, 2014.  By way of a February 23, 2015 letter the Ocean County Prosecutor confirmed that neither it nor the Atlantic County Prosecutor's Office would be bringing criminal charges against Gibson.

I filed my lawsuit seeking access to at least some of the records regarding the Gibson investigation on January 22, 2015 and filed an amended complaint on February 29, 2015. I was represented by Walter M. Luers of Clinton.   At a March 3, 2015 hearing, Judge Vincent J. Grasso directed Luers to make the mother of the child with whom Gibson was allegedly involved and the Atlantic County Prosecutor's Office parties to the case so that they could argue why the requested records should or should not be publicly disclosed.

The child's mother, referred to as Jane Doe, submitted a certification to the court stating that despite the Ocean Prosecutor's repeated attempts to get her to "urge Mr. Paff to drop his lawsuit and not seek these records," she actually supported my lawsuit and wanted the records disclosed as long as her child's name and other identifying information was redacted from them.  She said that she was "very unhappy with how this matter has been treated by the Prosecutor's Office" and that she was "upset with the lack of progress of the case, including the absence of charges."

Judge Troncone, in accordance with the Lyndhurst ruling, ruled that all the records I sought were "criminal investigatory records" and thus exempt from disclosure because they "clearly 'pertained to' an investigation." (emphasis in original)  In denying my claims under the common law right of access, Troncone, apparently ignoring the child's mother's certification, ruled that I had "failed to establish a sufficient interest in the matter to overcome the child and child's family's right to privacy."  Troncone also ruled that suspects like Gibson might be chilled from giving interviews and otherwise cooperating with police if they knew that the records created as a result of their cooperation could eventually be made public.

Although I abhor the Lyndhurst decision, I understand that Judge Troncone really had no choice but to apply it to my case.  But, I believe that Judge Troncone wrongly decided my common law right of access claim.

I believe that there is a compelling public interest supporting disclosure of at least some of the records in the prosecutor's file.  From what we know, Gibson--a man who, as principal, had access to hundreds if not thousands of children--was investigated by law enforcement officials for what Judge Troncone called "an alleged act of sexual misconduct against" a minor student at Gibson's school. We also know that no charges were filed against Gibson even though the student's mother thought that charges were warranted.  We also know that the Prosecutor's office tried to get the student's mother to urge me to abandon my efforts to obtain these records.

Police and prosecutors sometimes bring charges against innocents out of personal animosity or prejudice.  Likewise, police and prosecutors sometimes fail or refuse to bring charges against guilty parties with whom they are friendly or politically aligned.  Whenever prosecutors bring charges or refuse to bring charges, the public needs to know, at least generally, some of the facts regarding the underlying conduct so that they can judge whether the decision to bring charges (or to decline to bring charges) was reasonable.  While I fully respect the child's and the child's family's privacy rights, investigative documents could have been redacted to excise the child's identity while still informing the public of Gibson's conduct and the prosecutor's reasons for not bringing charges against him. Unfortunately, and in a large part due to the Lyndhurst decision, we will probably never know whether the decision to not charge Gibson was a reasonable exercise of discretion.

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