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.
* * *
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 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."