Tuesday, December 29, 2015

Tinton Falls Police Lieutenant's Internal Affairs record partially revealed.

John A. Scrivanic
Tinton Falls Police Chief
On November 23, 2015, I blogged about Tinton Falls Police Lieutenant Kevin Pierson settling his whistleblower lawsuit against the Borough for $527,500.  I subsequently learned of another lawsuit, filed by Tinton Falls Officer Thomas Dennehy, that shared some of the same alleged facts contained in Pierson's lawsuit.  (Dennehy's lawsuit is still active as of this writing.)

Paragraphs 90 and 91 of Dennehy's lawsuit, set forth below, allege that Tinton Falls Police Lieutenant Dean Duane, who was hired by the Department in 1989 and who made $168,719 in 2015, was involved in three incidents that resulted in Internal Affairs files being opened.

90. Defendants also promoted Dean Duane, an officer with an extensive and significant history of physical and verbal altercations implicating his fitness for duty, including the following: (a) a physical altercation at work with a co-worker in or about 2004; (b) an off-duty incident where the officer attempted to hang onto the bus when it pulled away, followed the bus, and thereafter engaged the bus driver in a verbal altercation; and (c) an on-the-job incident in or about September 2010 wherein Duane slapped Plaintiff in the face.
91. Upon information and belief, on or about January 4, 2011, Duane punched a handcuffed sixteen-year-old juvenile in the face after responding to a call. Upon information and belief, the juvenile received a black eye and a broken nose and, the juvenile's mother has initiated the process to file an Internal Affairs (IA) complaint against Duane.
On December 4, 2015, I filed an Open Public Record Act (OPRA) request for documents that would prove or disprove the existence of these Internal Affairs matters involving Lieutenant Duane. On December 22, 2015, I received a comprehensive response from the Borough.

Many of the records that were responsive to my request were denied due to various exemptions.
Those records are described in a Vaughn Index that was provided to me by the Borough.  The remaining records, as well as the Vaughn Index itself, however, demonstrate that Lieutenant Duane was involved in the following three IA matters:

IA File 2008-08 (School bus incident).

According to a police narrative report, an unnamed school bus driver reported a September 16, 2008 confrontation with Duane to police.  According to the driver's report, Duane stood "in the middle of the road" and attempted to stop the bus after the driver apparently did not pick up a child who "was laying in the driveway and wouldn't get on the bus."  The driver claimed that after he refused to let Duane on the bus and started to drive off (because the driver "didn't know what [Duane] was going to do"), Duane "jumped onto the bus and was hanging from the passenger side mirror."  The driver said that Duane met him at the school and "attempted to confront him."  There is no indication of how the IA matter was resolved.

IA File 2010-05 (Slapping Dennehy in face).

No records were provided in response to my request.  But, the second page of the Vaughn Index indicates that eight pages of "correspondence, memoranda and witness statements" regarding the incident exist but were determined to be exempt from disclosure.

IA File 2011-02 (Punching juvenile in face).

Police narrative reports filed by Duane and another officer state that on January 4, 2011 Duane, after having handcuffed a sixteen year old boy who allegedly had taken several different drugs, "punched him in the face with [his] right hand in an effort to control him."  While difficult to read, a July 18, 2011 letter from Monmouth County Assistant Prosecutor Gregory J. Schweers closed the IA file at least in part because of the boy's refusal to cooperate with the investigation.

Monday, December 28, 2015

Thirty-day retention limit established for government video surveillance recordings.

At its September 17, 2015 meeting, the State Records Committee approved changes to state, county and municipal Records Retention Schedules requiring routine video surveillance recordings to be retained for a period of thirty days.  The requirement covers "real-time footage of buildings, grounds, and physical properties that are owned or controlled via leases or other contractual arrangements by the" government agency.  The thirty-day period is extended, however, if an incident, such as a slip and fall, motor vehicle accident or crime, is captured on the footage.  In such a case, the agency must defer to appropriate law enforcement record retention schedules.

I became interested in this issue after Washington Township (Gloucester County) Clerk Jill McCrea denied my request for surveillance recordings because the Township's cameras automatically re-recorded and thus overwrote videos every seven days.  When I questioned Gloucester County Municipal Clerks Association President Patricia A. Frontino about the propriety of such a short period of video retention, she wrote in an April 21, 2015 e-mail: "As you already know, the State Records Council [sic] has no requirement for the amount of time a video surveillance recording is to be retained.  Therefore, each municipality is left to establish their own time."

Not satisfied with Frontino's response, I reached out to John Mitch who is president of the Municipal Clerks' Association of New Jersey.  Mr. Mitch informed me that the State Records Committee was actively considering a thirty-day retention period.

According to the State Records Committee minutes, the New Jersey Department of Transportation tried to get a waiver from the thirty-day requirement based on its belief that its current video equipment lacked "the capacity to store images beyond 7 days."  The waiver request was denied and Records Committee member Joseph Klett, who serves as Chief of State Archives, remarked that granting this waiver would undermine the whole schedule.

Friday, December 18, 2015

Only OPRA requestors, not custodians, are allowed to initiate OPRA actions.


Update: On August 3, 2017, the New Jersey Supreme Court ruled that custodians can, in some cases, file declaratory judgment actions against requestors
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In a December 18, 2015 published, thus precedential decision, the Appellate Division of the New Jersey Superior Court held that:

1. OPRA grants the right to sue only to the records requestor. Thus, a records custodian may not sue a records requestor in order to enforce the custodian's asserted right to withhold records.

2. Similarly, but for different reasons, a custodian cannot sue a requestor to establish that records are not available to a requestor under the common law right of access.

3. Both OPRA and the common law require disclosure of documents containing the name of a firefighter who applied for financial relief from the New Jersey State Firemen's Association and its Local relief association and the amount of the relief award.  This ruling is based on the specific facts of this case which involved relief payments made to a volunteer firefighter who was fired from his Township job after he "was found to have viewed pornographic images on a fire district computer."  It does not grant access to the names and amounts of relief received by any other relief applicants.

The opinion in this case, Jeff Carter v. John Doe, is on-line here.

Wednesday, December 16, 2015

Port Authority to comply with OPRA.

In response to my Denial of Access Complaint filed with the Government Records Council (GRC), the Port Authority of New York and New Jersey conceded that it is subject to the Open Public Records Act (OPRA) as a result of legislation passed by both the New Jersey and New York legislatures earlier this year.

In her December 16, 2015 submission to the GRC, Authority Secretary Karen E. Eastman wrote that the Authority's duty to comply with OPRA has "been under close review" since the enactment of the bi-state legislation and that the Authority's Board of Commissioners will vote to implement procedures to handle OPRA and New York Freedom of Information Law requests at its next meeting.

According to the filing, Eastman is the Authority's designated OPRA custodian and records requests may be submitted to her via e-mail at keastman@panynj.gov.

Thursday, December 10, 2015

Judge denies NJSPCA's reconsideration motion. Chides it for trying "to get a 'second bite at the apple.'"

A "motion for reconsideration" is supposed to be filed only when a court failed to consider evidence or made a ruling that was "based upon a palpably incorrect or irrational basis."  Such motions are not supposed to made when a lawyer wants to assert arguments that he or she didn't make in the first go-around or when the lawyer simply disagrees with the judge's ruling.

Yet, that is exactly what lawyer Harry Jay Levin of the Toms River law firm of Levin & Cyphers tried to do.  And, Middlesex County Assignment Judge Travis L. Francis wasn't buying it.

Judge Francis had issued a August 28, 2015 order and decision finding that the New Jersey Society for the Prevention of Cruelty to Animals (NJSPCA), after having conceded that it was subject to the Open Public Records Act (OPRA), was not allowed to charge a "labor fee" for fulfilling requestor Collene Wronko's records request.  In that decision, Judge Francis ruled that Wronko's requests "are not too burdensome or amount to an 'extraordinary' expense of time."

Apparently not happy with ruling, Levin filed a motion for reconsideration arguing that the records Wronko sought were not disclosable under OPRA because a Department of Treasury manual exempts its records from access and because Wronko's request wasn't specific enough.

Judge Francis, in a November 20, 2015 ruling, denied the NJSPCA's motion because it was "an attempt to get a 'second bite at the apple.'"  Regarding its argument that Wronko's request lacked specificity, he wrote that the NJSPCA already "had two opportunities to present its argument that [Wronko's] OPRA requests were insufficient" and that a "Motion for Reconsideration is not the appropriate vehicle for [the NJSPCA] to now raise these issues."

Wednesday, December 9, 2015

Unpublished Appellate Division OPRA opinion.

"Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals. Unless somebody calls attention to them, they might 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.

John Paff v. Warren County Prosecutor's Office
Warren County, Docket No. WRN-L-0034-13
Trial Judge: Hon. Amy O'Connor, J.S.C.
December 8, 2015
Click here for the Appellate Division's decision.
Click here for trial court rulings

Summary:  Appellate Division affirmed trial court's order disclosing certain records pertaining to an investigation of sheriff officers who used county-owned generators for their personal use during Superstorm Sandy.
Update: December 28, 2015:
The Warren County Prosecutor's office called my attorney, Walter Luers, this morning and advised that a) that office (as opposed to County itself) will be taking over the case, b) it is going to petition the New Jersey Supreme Court to hear its appeal of the Appellate Division's disclosure ruling and c) that it will seek to extend the 30 day stay that the Appellate Division set for disclosure of the records.
Since such motions for stay extensions are almost always granted, I consented to the stay extension.
 Update: April 29, 2016:
 The Warren County Prosecutor's petition to the Supreme Court was denied.