Monday, August 3, 2015

Township's failure to say whether responsive records exist cost taxpayers $10,000.

As reported in my March 25, 2015 article, I had to file a lawsuit against Stafford Township (Ocean County) because Township officials wouldn't tell me whether they possessed documents that were responsive to my Open Public Records Act (OPRA) request.  Now, a judge has found that the Stafford taxpayers must pay a total of $10,369.14 to cover my costs and attorney fees even though it was ultimately found that the Township possessed no responsive records.

When responding to an OPRA request, a custodian must identify for the requestor any records on file that are responsive to the request even if the custodian believes that the responsive records are exempt from disclosure. It is impermissible for a custodian to tell a requestor: "We may or may not have records that are responsive to your OPRA request.  If we do have records, they are all exempt from disclosure."  Such a response doesn't give requestors enough information to determine for themselves whether or not the custodian's claims of exemption are legally justified.

In his July 24, 2015 written decision upholding the $10,369.14 cost and fee award, Superior Court Judge Mark A. Troncone held that Township Attorney Christopher Dasti, who handled my OPRA requests, "provided no information about the documents that [Stafford] withheld but simply argued the confidentiality requirements under the personnel record exemption. Such action left [Paff] with no information or opportunity to advocate his position and assess whether he had a recognizable claim under the law."  Troncone's reasoning is similar to that of former Morris County Assignment Judge Thomas L. Weisenbeck in his April 11, 2014 ruling in Tucker Kelly v. Borough of Riverdale, et al, Docket No. MRS-L-524-14.

After I had filed my lawsuit, Dasti produced a certification from Stafford Police Captain Thomas Dellane that confirmed there were no records that were responsive to my OPRA requests.  Judge Troncone held that Dellane's certification "is the first time [Stafford] adequately responded to [Paff's three February 2015 requests."  Since my OPRA lawsuit was the catalyst that caused Stafford to give a clear and definite response to my records request, I was the "prevailing party" and am entitled to my attorney fees and costs.  My attorney in the matter was CJ Griffin of Hackensack,

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