Friday, July 31, 2015

Pair of OPRA cases against Cumberland County to be heard on August 5th.


Update: The matters are scheduled for Wednesday, September 9, 2015, 2 p.m.

On Wednesday, August 5, 2015 at 9:30 a.m., Cumberland County Assignment Judge Georgia M. Curio will hear oral argument on a pair of Open Public Records Act (OPRA) cases filed against Cumberland County.  The hearing will be in Courtroom 346 in the Cumberland County Courthouse in Bridgeton.

The cases are both captioned Scheergie Nicolas v. County of Cumberland, et al, and bear docket numbers CUM-L-334-15 and CUM-L-335-15.  Both were filed on May 19,2015 by Laurel Springs firm of Conrad J. Benedetto.  In both cases, Nicolas, who works the Benedetto firm, filed OPRA requests on March 11, 2015 seeking records pertaining to Cumberland County Jail inmates Rashee Barlow and Rasheem Jacobs. The lawsuits were reported in the May 28, 2015 South Jersey Times.

The records sought in Docket No. CUM-L-334-15 are documents and videos regarding an alleged January 4, 2015 incident between Barlow and Corrections Officer Dawkins (no first name given).  The records sought under CUM-L-335-15 include videos and documentation of an alleged February 25, 2015 assault on Jacobs.

In his response to Docket No. CUM-L-334-15, Cumberland County Solicitor Theodore E. Baker said that Omarey Williams, the County's former custodian of records, requested additional time to produce the records but Benedetto's firm filed suit without responding to Williams' request.  Baker states that all responsive documents that exist were produced on May 28, 2015 and June 10, 2015.

In his response to Docket No. CUM-L-335-15, Baker did not admit that the County received the OPRA request, denied that the request was valid and claimed that the County lacked "sufficient information or knowledge" to say whether or not Nicolas had received a response to his request prior to the lawsuit's filing.  In his defenses to the lawsuit, Baker claimed that all responsive documents were exempt as criminal investigatory records since they "were subject to a criminal investigation by the Cumberland County Prosecutor's Office."

The public and press are invited to attend but are urged to call the court at 856-453-4303 or 856-453-4330 the day before the hearing to make sure it hasn't been adjourned.

Judge orders disclosure of police report's description of incident involving Bound Brook teacher.

On July 28, 2015, Somerset County Assignment Judge Yolanda Ciccone ordered the Borough of Bound Brook to disclose the "narrative description" of a police CAD report regarding an October 29, 2014 incident involving a 24-year-old former Bound Brook High School teacher and juvenile who is identified in report as the "Victim."

Hopefully, the ordered disclosure will resolve the mystery over why the teacher, Kimberly Charnuska, was fired on November 24, 2014.  Charnuska's lawyer has publicly claimed that his client did nothing wrong--and even called her a "modern day Mother Teresa"--who was terminated because of "unscrupulous decision-making" by Bound Brook Superintendent Daniel Gallagher that was based on "a false and malicious rumor."

Judge Ciccone's order, which was not accompanied by any written decision or statement of her reasons, instructs Bound Brook to produce the report within thirty days except that "information pertaining to minors" and "MNI numbers" may remain redacted.  The redacted version of the CAD report that I received prior to filing my lawsuit is on-line here.  Ciccone's order also invited my attorney, Richard M. Gutman of Montclair, to submit a certification setting forth his costs and attorney fees.

Lawsuit claims that Bridgeton violated Open Public Meetings Act.

According to July 22, 2015 court filing, the City of Bridgeton entered into a "secret agreement" with its Municipal Port Authority in order to evade a $823,000 judgment against the Authority.  The lawsuit alleges that Bridgeton officials violated the Open Public Meetings Act (OPMA) "by not disclosing at the public meetings the agreement between the City and the [Port Authority]."

According to the Second Amended Complaint filed in Henry Grove Diversified Investments, LLP and Thomas Martin, v. Bridgeton Municipal Port Authority, et al, Docket No. CUM-L-425-15, the "non-functioning, debt ridden and mismanaged" Port Authority entered into a secret agreement to sell its assets to the City for $225,000 in an apparent attempt to limit its liability to Henry Grove--the holder of the judgment--to the $225,000 realized through the sale.  The sale, according to the lawsuit, furthers the City's belief that "it can somehow evade the Fiscal Control Laws and specifically N.J.S.A. 48A:5A-20 and dissolve the [Authority] and not be required to pay the unpaid bills."

The suit claims that the Port Authority, which the Chairman of the Local Finance Board described in October 2014 as lacking any purpose, "is simply a puppet of the City of Bridgeton [which] has acted as the alter ego of the City of Bridgeton and is controlled by [Mayor Albert B. Kelly]."  Kelly, who serves as Bridgeton's Mayor and also as a member of the Port Authority, made the motion at the Port Authority's May 13, 2015 meeting to sell its assets to the City.

As for the OPMA violation, the lawsuit alleges that "the decision to sell assets from the [Authority] was done in secret. There is no written contract. It was not discussed ]and properly vented at a public session of the [Authority] the City of Bridgeton. Ultimately a resolution by the [Authority] was passed but the actions of the City and the [Authority] are violative of the New Jersey Open Public Meetings Act."  The OPMA states that the public's right to observe governmental decision making "is vital to the enhancement and proper functioning of the democratic process."

Wednesday, July 29, 2015

Government Records Council affirms that there is no statute of limitations to bring a GRC Denial of Access Complaint.

In case there is any doubt, the Government Records Council (GRC) held on July 28, 2015 in Paff v. Harrison Township Fire District that a) there is no statute of limitations on filing a GRC Denial of Access Complaint and b) that the GRC is without authority to impose a statute of limitations on requestors.

Tuesday, July 28, 2015

LFB sent out violation notices to thousands of local government officers and dismissed complaints against about fifteen hundred others without investigating them.

According to a transcript of the June 10, 2015 Local Finance Board (LFB) meeting, Board member Ted Light praised the LFB's staff for clearing 173 uninvestigated ethics complaints, filed by me and John Schmidt (who serves with me on the New Jersey Foundation of Open Government (NJFOG) Board of Directors) against 1,504 local officials across the state.  The praise was offered even though the complaints had not been fully investigated.
I just want to mention that you and the staff are doing an excellent job on completing these and clearing them up. I mean, they've  been hanging for so many years it's nice to see them off the agenda docket.
According to LFB Chairman Tim Cunningham, Schmidt's and my complaints had been allowed to languish and over the years became too old to investigate and enforce.  I've placed a copy of a recent complaint log on-line that has the dismissed complaints highlighted.  The officials named in those complaints have effectively been given a pass. (I have been complaining about the LFB's complaint procedure since 2010.)

According to Cunningham:
There is significant number of historic or older financial disclosure statement complaints that have been filed against several parties. And that's resulted in a backlog within the Local Finance Board's ethics responsibilities. And the Board is today being asked to administratively close 173 complaints that were made against 1,504 local government officers and cover a time period from 2008 through 2013. 
The fact that the Department -- the Division, I should say, has gone to an electronic filing system has really obviated the need for continued complaints by constituents and citizens. As this Board is well aware, notices of violation were recently sent out to thousands of non-filers for the 2014 cycle. Therefore, the idea of pursuing complaints from 2008 through, you know, you know, '13 those complaints are rather historic at this point. People may no longer be in office. People may have moved. People may have passed away. And frankly, we know that to be the case. So now that we have a better system in place we feel it prudent -- from the Division standpoint we feel it prudent to administratively close these out.
Cunningham's statements suggest that the new electronic filing procedure is working well and is a step forward for the LFB.  Cunningham reported that 288 local government officials each submitted $100 checks for a total of $28,800.

But, a verbal report given during the meeting by LFB staff members Dana Jones revealed that of the thousands of violation notices issued, the recipients of 467 of them have appealed and that perhaps 200 more appeals will be received over the next few months.

According to an LFB document obtained via an OPRA request, the LFB decided to waive fines in 395 cases at its April 2015 and June 2015 meetings.  193 of those waivers were made because of municipal clerks' errors on the rosters.  45 were waived because of claims of financial hardship, sickness or deaths in the family and 15 waivers were granted because the non-filers were deceased.

Judge to consider OPRA fines against South Bound Brook Borough Clerk.

Yolanda Ciccone, A.J.S.C.
On August 6, 2015, Somerset County Assignment Judge Yolanda Ciccone will consider whether South Bound Brook Borough (Somerset County) Clerk Donald E. Kazar should be fined $2,500 for knowingly, willfully and unreasonably denying several requests filed pursuant to the Open Public Records Act (OPRA).

In his lawsuit, former Borough Police Chief Robert A. Verry alleged that Kazar improperly responded to four OPRA requests seeking e-mails between and among Borough officials.  Kazar denied the first request based on it being too broad and not specific enough to satisfy OPRA's requirements.  Verry refused Kazar's requests to extend the time for him to respond to the latter three requests. Verry said that he refused because Kazar engages "in a pattern and practice of requesting significant extensions of time to respond to [Verry's] OPRA requests for e-mails and correspondences only to then ultimately deny the request because he erroneously maintains they are overbroad and invalid."  In response to Verry's refusals, Kazar wrote "Then I guess u will be filing a complaint."

Verry's lawsuit, brought by CJ Griffin of Hackensack, alleges that Kazar knew that Verry's requests were valid because the Government Records Council (GRC) had previously and repeatedly upheld the validity of "similarly worded requests" filed by Verry but denied by Kazar.  The lawsuit also asserts that Kazar had previously been fined $1,000 in May 2007 for knowingly and willfully violating OPRA and that the Office of Administrative Law is presently considering fining him in another case.  In addition to fining Kazar, Verry's present lawsuit seeks access to the denied records and payment of Verry's attorneys fees and costs.

Monday, July 20, 2015

LFB Rosters to be kept on-line

Each time I obtain a roster of ethics cases from the Local Finance Board, I'm going to update this entry to include those rosters.  This way, the public, by comparing the two most recent rosters can see which cases have been resolved between the dates of their issuance.  I realize that this is a ridiculous manner in which to find out which cases the Local Finance Board adjudicates, but given the Board's efforts to thwart transparency regarding its ethics law enforcement, it's the only way I know how to do it.

December 12, 2014
June 22, 2015
July 28, 2015
March 22, 2016


Monday, July 13, 2015

Local Finance Board adjudicates some ethics cases.

Although the Local Finance Board (LFB) processes citizen complaints alleging violations of the Local Government Ethics Law, it does not place its decisions on-line.  And, the LFB doesn't even notify the public when a decision is reached that disposes of an ethics case.  Since ethics complaints sometimes take years to go through the LFB's process, the public has no ready way to find out which cases have recently closed and thus become publicly disclosable.  I obtain this information the best I can by periodically comparing snapshots of the LFB's case rosters, which I obtain through OPRA requests, to see which cases have closed during the interval between the creation dates of both rosters.  I then submit additional OPRA requests for the case files on those recently closed cases to see who was involved and whether the accused public official was found to be in violation.

This, of course, is a very tedious process, but, given the LFB's apparent reluctance to be more transparent, it's the only way of getting this information out the public.

Following is a list of cases.  The actual documents are within a 86-page PDF that is on-line here.  The page numbers below refer to the case's starting page within the PDF.

CASES IN WHICH VIOLATIONS WERE FOUND AND  FINES WERE IMPOSED

Public Agency: Borough of Bloomsbury
County: Hunterdon
Name(s) of charged official(s): Mark Peck, Carol Flink, Vicky Papics, Marc Scheffel, Steven Shelton, Martha Tersigni and Eric Wegner.
Brief synopsis:  Mayor and council members accused of ethical improprieties regarding appointment of Emergency Management Coordinator.
Outcome: Peck, Flink and Papics were found to have violated the ethics law and fined $100 each.  The remaining respondents were found to have not violated the ethics law.
Page Number: 1

Public Agency: Township of Mansfield
County: Burlington
Name(s) of charged official(s): Sean Gable
Brief synopsis: Accused of voting for his wife and members of the  fire company where he serves as Deputy Chief to Township positions.
Outcome: Found to have violated ethics law and fined $100.
Page Number: 20

Public Agency: Borough of Haddon Heights
County: Camden
Name(s) of charged official(s): Edward Forte
Brief synopsis:  Accused of leasing Borough property on behalf of a private organization while simultaneously serving on Borough Council.
Outcome: Found to have violated ethics law and fined $100.  After appeal, LFB agreed to closed the complaint after $100 was paid.
Page Number: 26

Public Agency:  Borough of Middlesex
County: Middlesex
Name(s) of charged official(s): Dina Fornataro-Healy
Brief synopsis: Used Borough e-mail system to promote employer's private business.
Outcome: Found to have violated ethics law and fined $100, but fine was waived.
Page Number: 48

Public Agency: City of Jersey City
County: Hudson
Name(s) of charged official(s): Helen Davis
Brief synopsis:  Accused of failing to list rental properties on her Financial Disclosure Statement when she was on the Rent Leveling Board.  Jersey City's local ethics board dismissed, but Local Finance Board reversed.
Outcome: Found to have violated ethics law and fined $500.
Page Number: 51

Public Agency: Borough of North Plainfield
County: Somerset
Name(s) of charged official(s): Frank Righetti
Brief synopsis: Accused of serving simultaneously as paid crossing guard and member of Borough Council.
Outcome: Found to have violated ethics law and fined $100, but fine was waived.
Page Number: 56

Public Agency: Borough of Ocean Gate
County: Ocean
Name(s) of charged official(s): Paul J. Kennedy
Brief synopsis: Accused of serving in various paid Borough positions while serving as Mayor.
Outcome: Found to have violated ethics law and fined $700.
Page Number: 79

DISMISSAL AND FINDING OF NO UNETHICAL CONDUCT.

Public Agency: Borough of Wallington
County: Bergen
Name(s) of charged official(s): Darius Pawluczuk
Brief synopsis: Accused of leaving blank certain areas of Financial Disclosure Statement.
Outcome: Dismissed as not having reasonable factual basis.
Page Number: 15

Public Agency: Gloucester County
County: Gloucester
Name(s) of charged official(s): Heather Simmons
Brief synopsis: Accused of receiving contract as Glassboro's Public Information Consultant while serving as Gloucester County Freeholder.  Also accused of violating bidding laws.
Outcome: Dismissed as not having reasonable factual basis.
Page Number: 18

Public Agency:  Borough of Haddon Heights
County: Camden
Name(s) of charged official(s): Edward Forte
Brief synopsis: Accused of voting to appoint his personal lawyer, Albert Olizi, as Borough Solicitor.
Outcome: Dismissed.
Page Number: 24

Public Agency: Borough of Haddon Heights
County: Camden
Name(s) of charged official(s): Albert J. Olizi, Jr.
Brief synopsis: Accused of being Mayor's attorney and involved with Sons of Italy chapter while serving as Borough Solicitor.
Outcome: Dismissed.
Page Number: 36

Public Agency: Borough of Haddon Heights
County: Camden
Name(s) of charged official(s):  Richard DiRenzo
Brief synopsis: Accused of voting for Albert J. Olizi, Jr., his personal attorney, for Borough Solicitor.
Outcome: Dismissed.
Page Number:  40

Public Agency: Township of Jackson
County: Ocean
Name(s) of charged official(s): Patricia Wood
Brief synopsis:  Accused of hiring a band for a community celebration while her son was a band member.
Outcome: Dismissed.
Page Number: 42

Public Agency: Township of Barnegat
County: Ocean
Name(s) of charged official(s): Susan McCabe
Brief synopsis: Accused of creating a paid Township position and then filling it with her former campaign treasurer.
Outcome: Withdrawn.
Page Number: 44

Public Agency:  Borough of Middlesex
County: Middlesex
Name(s) of charged official(s): Ronald Dobies
Brief synopsis: Failure to appoint members of local ethics board.
Outcome: Dismissed as not having reasonable factual basis.
Page Number: 46

Public Agency: Township of Vernon
County: Sussex
Name(s) of charged official(s): Edward Dunn
Brief synopsis:  Accused of campaigning of municipal property.
Outcome: Dismissed for lack of jurisdiction.
Page Number: 59

Public Agency: Township of Vernon
County: Sussex
Name(s) of charged official(s): Victor Marotta
Brief synopsis: Accused of campaigning on municipal website-based television.
Outcome: Dismissed, but website needs to have disclaimer posted.
Page Number: 61

Public Agency: Township of Vernon
County: Sussex
Name(s) of charged official(s): Patrick Rizzuto
Brief synopsis: Accused of campaigning on municipal website-based television.
Outcome: Dismissed as not having reasonable factual basis.
Page Number: 63

Public Agency: Township of Vernon
County: Sussex
Name(s) of charged official(s): Richard Wetzel
Brief synopsis: Accused of campaigning on municipal website-based television.
Outcome: Dismissed as not having reasonable factual basis.
Page Number: 65

Public Agency: Township of Sparta
County: Sussex
Name(s) of charged official(s): Ann Whilesmith
Brief synopsis: Accused of participating in employment related discussions regarding Township Manager David Troast when she had a "personal involvement" with him.
Outcome: Dismissed as not having reasonable factual basis.
Page Number: 67

Public Agency: Township of Sparta
County: Sussex
Name(s) of charged official(s): Christine Quinn
Brief synopsis: Accused of participating in employment related discussions regarding Township Manager David Troast when she had a "personal involvement" with him.
Outcome: Dismissed as not having reasonable factual basis.
Page Number: 69

Public Agency: Township of Jackson
County: Ocean
Name(s) of charged official(s): Robert Nixon
Brief synopsis: Accused of supporting appointing his former campaign manager to Municipal Utilities Authority.
Outcome: Dismissed as not having reasonable factual basis.
Page Number: 75

Public Agency: Township of Jackson
County: Ocean
Name(s) of charged official(s): Barry Calogero
Brief synopsis: Accused of supporting appointing his former campaign manager to Municipal Utilities Authority.
Outcome: Dismissed as not having reasonable factual basis.
Page Number: 77

Public Agency: Lakewood Fire District No. 1
County: Ocean
Name(s) of charged official(s): Larry Loigman
Brief synopsis: Accused of failing to list property on Financial Disclosure Statement.
Outcome: Dismissed.
Page Number: 83

Public Agency: Township of Lopatcong
County: Warren
Name(s) of charged official(s): Margaret Beth Dilts
Brief synopsis: Accused, in her capacity as clerk, of having put false statement in meeting minutes.
Outcome: Dismissed for lack of jurisdiction.
Page Number: 85

Alpine district agrees to pay $80K for special ed student's placement.

In a confidential agreement recently disclosed in response to an Open Public Records Act (OPRA) request, the Alpine Board of Education, agreed to pay $80,000 toward an unidentified student's 2014-15 school year placement at an undisclosed private school.  This payment represents 73.77% of the school's $108,449 annual cost.  According to a "Stay Put" agreement, the payments will continue each year as long as the student remains enrolled there.

Friday, July 10, 2015

$45,690.76 in costs and fees awarded in "Brady letter" case.

In a July 10, 2015 Order, Superior Court Judge Nelson C. Johnson ordered the Cape May County Prosecutor's Office to pay my attorney, Richard M. Gutman of Montclair, $45,690.76 for costs and legal services related to my lawsuit that won disclosure of four "Brady letters" that had been withheld by the Prosecutor's Office.  Background on this lawsuit is on-line here.  The fee award is stayed, however, pending the Prosecutor's appeal of Judge Johnson's order to disclose the four letters.

In his written decision, Judge Johnson criticized the manner in which the Prosecutor's Office managed my OPRA request and lawsuit.  Johnson wrote that the Prosecutor's Office "failed to treat this claim with urgency or respect" and delayed production of certifications which, according to Judge Johnson, wasted "valuable time."  Judge Johnson found that even though I prevailed under the common law right of access, rather than OPRA, I was still entitled to attorney fees because of the Supreme Court's 2008 decision in Mason v. City of Hoboken.

Friday, July 3, 2015

New OPRA lawsuit tests redactions to special education litigation documents.

On Tuesday, August 18, 2015, 9 a.m., Essex County Superior Court Judge Stephanie Ann Mitterhoff will hear argument in my Open Public Records Act (OPRA) lawsuit against the Millburn Township Board of Education.  The lawsuit, exhibits, briefs and other documents in Paff v. Millburn Township Board of Education, et al, Docket No. ESX-L-3607-15 are on-line here.

The main purpose of this suit is to bring some attention, and hopefully spur some consistency, to the ways in which school records custodians apply redactions to special education litigation documents.  (Another post, posted earlier today, explains the Petition for Rulemaking that I filed similarly seeking redaction consistency.)

The lawsuit reveals how haphazardly redactions are applied to special education settlement agreements.  Exhibit C to my lawsuit shows how heavily the originally produced agreements were redacted and Exhibit F shows that much of the redacted material was disclosed after I sent in a letter of complaint.  Since Millburn's custodian continued to redact material that I felt should be disclosed, CJ Griffin filed suit on my behalf.

Hopefully, this case will result in a written decision that will help school districts across the state.


Seeking consistency in special ed document redactions.

New Jersey's administrative regulations state that in order to protect the identities of minors involved in special education litigation, "the judge shall use initials rather than full names when referring to the child and the parent(s) or guardian."

Yet, when I submit Open Public Records Act (OPRA) requests to local school boards for special education litigation documents, the school boards often redact the initials of both the minor and his or her parents or guardians.  The school districts justify these redactions by pointing out that it is often easy, especially in small districts where everyone know their neighbors, to figure out a student's identity from the initials.  I accept this rationale.

Yet, when I submit an OPRA request to the Office of Administrative Law (OAL) for the same redacted records that I previously received from the school district, the OAL provides me with a version that leaves the student's and parent's initials unredacted.  Thus, anyone can learn the initials of special education litigants simply by submitting his or her OPRA request to the OAL instead of the local school district.

It makes no sense for two different agencies which are both subject to OPRA to have differing methods of redacting the same document.  I have attempted to effect consistency by submitting a Petition for Rulemaking to the OAL.  My petition and notification of its publication in the New Jersey Register are on-line here.

I urge school districts and others who support or oppose my request for consistent redaction standard to send their comments and suggestions to the OAL's Mark Stanton at mark.stanton@oal.state.nj.us  referring to the notice published at 47 N.J.R. 1350(a).

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.
-------------------
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.