Sunday, November 29, 2015

Despite legislation, Port Authority of NY/NJ still not honoring OPRA.

Update 02/02/17: In its January 31, 2017 Order, the Government Records Council (GRC) ruled that the records custodian for the Port Authority of NY/NJ violated the Open Public Records Act (OPRA) by advising me that he needed an extension of "at least three weeks" to review my OPRA request.  This was after my earlier requests made on June 26, 2015 and July 22, 2015 were ignored.  The GRC also ruled that the Authority violated OPRA by failing to adopt a proper OPRA request form and instead published an internal records request form that the GRC said "could be misleading to the public as a deficient or misleading form."  The GRC ordered the Authority to adopt a proper, complaint OPRA request form and to submit a certification that such a form has been adopted within five business days.  CJ Griffin of Hackensack is my attorney in this matter.  (The Shostack settlement agreement was provided to me prior to the GRCs decision.)
Since July of 2012, I have been trying to get a copy of the settlement agreement that resolved Hanna Shostack's lawsuit against the Port Authority of New York and New Jersey.  Shostack said that she was fired because she was not affiliated with the Republican Party.  She claimed that Cruz Russell, her supervisor at the Port Authority, told her "that the decision to discharge her came straight from Governor Christie's office and there was nothing he could do to save her job."

The Port Authority, which was not until recently subject to the Open Public Record Act (OPRA), blocked my attempt to get the settlement agreement at every turn.  I recently renewed my efforts after legislation was passed in both New York and New Jersey that subjected the Port Authority to OPRA. My first two requests were ignored and, in response to my third request, I was told on October 21, 2015 that the Port Authority was "processing the request under the Port Authority's Freedom of Information Code," and that they "anticipate[d] that it will take at least three weeks for us to review your request and respond to you."  (As of today, November 29, 2015, I have received nothing further from the Port Authority).

Since the Port Authority is violating OPRA, I, represented by Hackensack attorney CJ Griffin, filed a Denial of Access Complaint with the Government Records Council.  Hopefully, this will cause the Port Authority to start honoring OPRA requests in a timely manner.

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.

Robert Verry v. Borough of South Bound Brook
Somerset County, Docket No. SOM-L-817-15, SOM-L-1046-15
Hon. Yolanda Ciccone, A.J.S.C.
November 2, 2015
Click here for the court's decision.

Summary:  Requestor submitted eight records requests. Records Custodians found to have violated OPRA regarding two of those requests and Judge Ciccone required further submissions on the remaining six requests--most of them on the "specific issue of whether records being not 'currently available' requires a response from the custodian within seven days of the initial request."  Court ruled that custodian must provide log of e-mails in response to a request.  The Court appears to have imposed an additional burden on OPRA requestors who seek to recover their attorney fees.  According to the decision, counsel fees are to be awarded when "the purpose of OPRA was vindicated by the litigation."  Judge Ciccone said that she "remains unconvinced that all of [Verry's] requests vindicate the purpose of OPRA."  While Verry "articulated a reason for requesting the records related to" some of his requests, he "has not set forth any justification for seeking the requested records" in other cases.  Judge Ciccone said that she "fails to note how production of the additional records furthers OPRA's purpose."  Thus, she agreed to award partial attorney fees.

Saturday, November 28, 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.

Patricia Gilleran v. City of East Orange
Essex County, Docket No. ESX-L-5212-15
Hon. Stephanie A. Mitterhoff, J.S.C.
October 28, 2015
Click here for the court's decision.

Summary:  East Orange must accept OPRA requests by either fax or e-mail and cannot restrict requestors to mailing or hand-delivering their requests.

Passaic County sued for prompt access to settlement records.

On November 23, 2015, Richard M. Gutman of Montclair filed an Open Public Records Act (OPRA) lawsuit on my behalf seeking prompt disclosure of records regarding the settlement that resolved a lawsuit against the Passaic County Sheriff's Department.  While the lawsuit was marked "settled" by the court on October 9, 2015, the County was still denying my request as late as November 9, 2015 because the settlement agreement had not been fully signed and finalized.  Gutman's filing is on-line here.

I often write about settlements of lawsuits against public agencies and officials on my NJ Civil Settlements blog.  Newspaper reporters, after reading my blog, frequently publish articles about the settlements I discover causing that information to be distributed to a wide audience.  This lawsuit is important because being delayed several weeks or months in obtaining settlements causes them to lose news value.

The settled lawsuit at issue in my case was brought by Sergeant Daryl Walton of the Passaic County Sheriff's Department. Walton claimed he was retaliated against after investigating a complaint that Acting Sheriff Charles S. Meyers had allegedly engaged in voter fraud.

Wednesday, November 25, 2015

Oceanport police punt records destruction investigation to school lawyer.

On February 17, 2015, I asked Detective Gregory A. Lauretta, Jr. of the Oceanport (Monmouth County) Police Department to consider bringing criminal charges against former Oceanport School Business Administrator Norma M. Tursi.  I based my request on a September 17, 2014 sworn certification by current School Business Administrator Dennis W. Kotch in which he said that Tursi ordered that various Board records be shredded despite the fact that "appropriate forms for the destruction of records were not submitted to the New Jersey Division of Asset [sic] and Record Management and that no records of what was destroyed were kept."  I pointed out that Tursi's actions may have violated the Destruction of Public Records Law, N.J.S.A. 47:3­-29, which states that any person who "defaces, mutilates or destroys with malicious intent any public record shall be guilty of a high misdemeanor."

In response to my request for the status of the investigation, Detective Lauretta said that the matter was "referred over to the Board of Education’s Attorney, Armen McOmber [who] would then follow up on this incident and decide what action to take, if any."

I take this to mean that the police will not be filing criminal charges against Tursi.

Tuesday, November 17, 2015

OPRA lawsuit seeks police Internal Affairs "Index Files."

Mitchell A. Little
Toms River Police Chief
On Friday, December 11, 2015, 2:30 p.m., Ocean County Superior Court Robert E. Brenner will hear argument on a pair of cases that challenge the Toms River's and Seaside Park's refusal to disclose their police departments' Internal Affairs "Index Files" to an Open Public Records Act (OPRA) requestor.

Police Index Files, examples of which are on-line here, are tables that list factual information, such as the complainant's name, the officer's name, nature of the conduct complained about and a unique control number, for each Internal Affairs complaint that a police department receives.  CJ Griffin of Hackensack, who is representing plaintiff Richard Rivera in the case, has submitted a brief that clearly outlines the issued in the case and argues that at least redacted versions of the Index Files should be disclosed.

The New Jersey Attorney General has entered into this as an amicus curiae (friend of the court) and has joined Toms River and Seaside Park in arguing that records should be suppressed.

The hearing, which is open to the public, will be held in Courtroom #4 at the Courthouse at 100 Hooper Avenue, Toms River.  Those who wish to attend are cautioned to telephone the court at 732-506-5300 the day prior to the hearing to confirm that the hearing hasn't been cancelled or adjourned.  Refer to Docket Nos OCN-L-225-15 and OCN-L-452-15

Sunday, November 15, 2015

NJ Supreme Court to determine OPRA's applicability to security camera footage.

Stuart Rabner
Chief Justice
On November 6, 2015, the New Jersey Supreme Court agreed to hear Bloomfield Township's (Essex County) appeal of a May 13, 2015 Appellate Division ruling that required the Township to provide an Open Public Records Act (OPRA) requestor with 14 hours of video taken by a stationary camera located on the back of Bloomfield's municipal building.

In its July 10, 2015 submission to the Supreme Court, Bloomfield argued that the Appellate Division's ruling would burden public agencies that have security cameras by requiring them to watch hours and hours of recorded videos in their entirety to determine whether they contain confidential or exempt material.  This burden, according to Bloomfield, "could result in governmental entities simply turning off their video surveillance equipment, or not increasing their security measures, simply to avoid" having to watch hours of recorded video requested under OPRA.

Saturday, November 14, 2015

Court to determine disclosure of investigative records related to allegations of misconduct by Cape May Sheriff.

Gary G. Schaffer
Cape May County Sheriff
On Tuesday, December 8, 2015 at 10:30 a.m. Mercer County Assignment Judge Mary C. Jacobson will hear oral argument in the case of John Paff v. New Jersey State Police, et al, Docket No. MER-L- 1984-15.

At issue are two State Police investigation reports pertaining to allegations that Cape May County Sheriff Gary G. Schaffer was involved in misconduct or impropriety while he worked at the Cape May Police Training Academy and the Ocean City Aquatic Center.

The State Police have admitted that it possesses two investigation reports into Schaffer's alleged misconduct but refused to release them because they are "exempt from access as criminal investigative records."  My lawyer, CJ Griffin of Hackensack, argues that under the common law right of access citizens have a great need to see the records so they can assure themselves that the allegations were fairly investigated and not just swept under the rug.

When Shore News Today reporters asked Sheriff Schaffer last year for a comment on the investigation, he was quoted as having said that he would “not comment on a blog.”

Friday, November 6, 2015

Memory hole located in Bloomfield Township.

Update: In its February 1, 2017 report, the Municipal Court Practices Committee rejected my December 1, 2015 request for a rule change that would resolve the problem set forth below.
Today, I learned that the Bloomfield Municipal Court (Essex County) did not prepare a formal complaint (called a CDR or special form of complaint) in 2012 when a citizen sought to file a complaint against a police officer from Middlesex County.  Rather, the Bloomfield court recorded the citizen's complaint on its own informal "Complaint Information Form."

CDRs and special forms of complaint each bear a unique control number and must be entered into the Automated Complaint System (ACS) (i.e. the municipal court's centralized computer system) when completed.  This allows cases to be identified by and tracked through the ACS.  An example of a CDR is on-line here.

Bloomfield's "Complaint Information Form," however, is just a letter-sized piece of paper which bears no control number and is not entered into the ACS.  This means that a person who queries the ACS for a complaint will not find it if it was recorded on Complaint Information Form instead of a CDR or special form.

The complaint at issue was brought by Joseph Scurese against Bernadette Yates.  It was found to have probable cause by the Bloomfield Municipal Court and proceeded to mediation.  Yet, no CDR or special form of complaint ever issued.  Had I not learned about Scurese's complaint from reading his civil lawsuit, I would have never been able to find it by querying the ACS.