Monday, December 19, 2016

What is a "typical partisan caucus" and how can the public be certain that this OPMA exception is not being used to subvert public's rights under OPMA?

According to a December 17, 2016 article "Jackson Council Spars with Resident Over Political Caucus Meeting," by Phil Stilton of the Shore News, local activists secretly videotaped the mayor and every member of the Jackson Township Council attending an unadvertised meeting at a law office.  Three members of the Township's Municipal Utilities Authority also reportedly attended.

When confronted with the evidence, Council President Rob Nixon claimed that the secret meeting was a "typical political caucus." Nixon is quoted as having said that: “The council separately from our political roles, we’re permitted to meet with anybody in a political context that we want to so long as township business is not discussed outside of that context.”

Nixon's comments correctly characterize the Appellate Division's holding in Mountain Hill, LLC v. Township of Middletown, 399 N.J. Super. 486 (App. Div. 2008) which held, at page 506, that an entire municipal council who all belong to one political party can meeting in secret, unannounced meetings provided that "only the political implications of [the issue discussed], its 'importance' to the party in terms of votes, the political pulse of the residents of the Township and how to 'spin' items of political importance" were discussed.  In other words, a single-party majority of elected officials can privately meet as long as they are discussing the political ramifications of public issues as opposed to the issues themselves.

Back in 1975, the New Jersey Department of State issued a set of guidelines that explained:
Since a political caucus is only open to one party and would not be open to all the members of the public body, it would not be required to be held in open session. Of course, if all the members of a public body were from one political party, the Law would not allow them to hold closed meetings by simply calling them political caucuses. Nor would the Law allow an effective majority of the members of the public body to use the political caucus mechanism to circumvent the Law's provisions.
Did the Jackson Township Council hold an illegal meeting and then, after the fact, label it as a "typical partisan caucus" to circumvent the Meetings Act?  The public has no way of knowing, as long as the meeting attendees stick to the same narrative.  What is clear is that the "typical partisan caucus" exception is the proverbial loophole that's big enough to drive a truck through.

Saturday, December 17, 2016

Salem judge rules that filed criminal complaint becomes exempt under OPRA when placed in personnel file.

At a December 16, 2016 hearing, Georgia M. Curio, Assignment Judge of Cumberland, Salem and Gloucester counties, ruled that a criminal complaint possessed by the Woodstown-Pilesgrove Regional School District was exempt from public disclosure as a "personnel record."  Curio's remarks were made orally from the bench in an Order to Show Cause hearing in Heather Grieco v. Regional Board of Education, Docket No. SLM-L-162-16.

Grieco requested the complaint after reading in the school board's March 26, 2015 closed meeting minutes that Superintendent Thomas A. Coleman, Jr. reported "that [redacted] case has been remanded back to the prosecutor to be downgraded and then sent back to the court."  The minutes label the matter as a "discussion item" and a "personnel matter" but provide no further information about the underlying criminal charge.

Grieco, concluding that a school employee had been charged with a criminal offense, sought a copy of the criminal complaint so that she could identify the identity of the defendant and the nature of the underlying charge.  Business Administrator Frank A. Rizzo, in a July 15, 2016 letter, denied the request stating that "[w]hile there is one document responsive to the request, the document is a personnel record contained in the individual's personnel file. Personnel records are exempt from disclosure under N.J.S.A. 47:1A-10 and the general privacy provision contained in N.J.S.A. 47:1A-1."

Grieco's lawyer, Raymond Baldino of the Clinton-based Law Office of Walter M. Luers, argued that criminal complaints are public filings and the fact that the complaint was later placed in an employee's personnel file did not retroactively make it exempt from disclosure. Curio disagreed and stated that personnel records are "carefully guarded" even if the criminal complaint was considered a public record by the courts or other agencies. 

Curio also upheld the school board's denial of Grieco's request for closed minutes that redacted the name or at least the initials of a student who had filed a due process petition.  She ruled that the minutes were properly redacted even though the student's name may have been made public in related filings held by the Department of Education and Office of Administrative Law.

Monday, November 28, 2016

Lawsuit seeks "type of crime" that suspended Mercer Sheriff lieutenant was alleged to have committed.

On January 11, 2017, 2 p.m., Burlington County Assignment Judge Ronald E. Bookbinder is scheduled to hear argument in Libertarians for Transparent Government (LFTG) v. Mercer County Prosecutor's Office (MCPO), Docket No. BUR-L-1567-16.  At issue is whether the public is permitted to know whether a specific crime was reported against a lieutenant in the Mercer County Sheriff's Office and if so, the nature of the conduct underlying the report.

This case stems from a June 7, 2016 Trentonian article entitled "Mercer County sheriff supervisor suspended following criminal probe that found no wrongdoing."  The article reported that Lieutenant Scott Schoellkopf was suspended for an unreported amount of time "over undisclosed allegations of criminal misconduct."  According to the article, MCPO officials investigated and "determined that criminal prosecution was not warranted."

In its Open Public Records Act (OPRA) request, LFTG asked for "information as to the type of crime, time, location and type of weapon, if any."  According to N.J.S.A. 47:1A-3(b), which is part of OPRA, the public is entitled to this information when a crime has been reported but no arrest made.  LFTG is being represented by CJ Griffin of Hackensack.  The case was originally filed in Mercer County but was transferred to Burlington County.

Wednesday, November 23, 2016

Supreme Court exempts security camera footage from OPRA disclosure.

In a November 22, 2016 decision, a 4 to 2 majority of the New Jersey Supreme Court held that footage from a town hall security camera is not subject to disclosure under the Open Public Records Act (OPRA).  The four-Justice majority, through an opinion authored by Justice Jaynee LaVecchia, was concerned that disclosure of security video could reveal the security camera's vulnerabilities.  According to the decision, "it takes no stretch of the imagination to realize that [releasing security footage on demand] would make it possible for any person to gather the information necessary to dismantle the protection provided by such security systems." 

The majority did not, however, deny the requestor's claim under the common law right of access, which mandates a balancing of the requestor's need for disclosure versus the government's need for confidentiality.  The court remanded the matter back to the trial court for such a balancing.

In his dissent, Chief Justice Stuart Rabner found that while the majority offered "sound reasons" for excluding security camera footage from OPRA, its view is not consistent with what the Legislature wrote when it enacted OPRA.  According to Rabner's dissent, "The Legislature could have written [a blanket security footage exemption] standard into the law but did not."

The case is captioned Patricia Gilleran v. Township of Bloomfield, et al, and Gilleran's attorney was CJ Griffin of Hackensack.  Amicus curiae (friend of the court) briefs were submitted by the Attorney General's office, the American Civil Liberties Union and the Reporters Committee for Freedom of the Press (along with several other media groups).


Thursday, November 17, 2016

Appellate Division remands "Brady letter" case. Seeks more detailed findings from trial judge.

Update:  Judge Johnson, in response to the remand, issued a December 20, 2016 Order and Decision.

Update:  Transcript of  December 19, 2016 hearing contains testimony by former Wildwood Crest Police Lieutenant Michael Hawthorne that he was a whistleblower who was punished for "saving the information that force Captain [David] Mayer to retire." Hawthorne's January 1, 2017 pro se brief is also on-line.  Important Note: Late this afternoon (01/16/17), I erroneously posted at the link above a draft, rather than the final version, of a brief that was filed with the Appellate Division by Michael Hawthorne.  I have since corrected the link so that it leads to the final, filed version of the brief.
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On November 17, 2016, a two-judge panel of an appeals court directed Atlantic/Cape May County Judge Nelson C. Johnson for "clarification" on why he ordered disclosure of four letters from Cape May County Prosecutor regarding "major problems with [two Wildwood Crest police officers] ever testifying in a criminal proceeding."

At issue are four letters through which Prosecutor Robert J. Taylor advised Wildwood Crest Mayor Carl Groon that he would issue "Brady letters" if either Captain David Mayer or Lieutenant Michael Hawthorne  were to be witnesses in any criminal proceeding.   Brady letters, named after the 1963 Supreme Court case of Brady v. Maryland, are typically issued to criminal defendants to alert them when a police officer who will be a witness against them has a sustained record for having been untruthful in an official capacity.

Johnson found that the four letters were exempt from disclosure under the Open Public Records Act (OPRA).  In a May 8, 2015 decision, however, he found the four letters were disclosable under the common law right of access.  In a subsequent July 10, 2015 order, Johnson awarded the plaintiff's lawyer $45,690.76 in costs and attorney fees. 

A determination under the common law right of access involves a balancing of the requestor's (or the public's) interest in disclosure of the records against the government's need for confidentiality.  In making their common law right disclosure determinations, courts are guided by six factors set forth in the Supreme Court case of Loigman v. Kimmelman.

In today's decision, Appellate Judges Richard S. Hoffman and Amy O'Connor found that Judge Johnson did not give sufficiently detailed reasons supporting his rulings on each of the Loigman factors.  They gave him forty-five days to issue a supplemental opinion.

Sunday, November 13, 2016

Hudson judge rules that draft settlement agreement is disclosable under OPRA.

On November 4, 2016, Hudson County Judge Daniel D'Alessandro ruled that the City of Jersey City should have furnished an Open Public Records Act (OPRA) requestor with a handwritten settlement agreement that was signed prior to the requestor's OPRA request even though the handwritten agreement stated that it was subject to approval by the City Council at a subsequent meeting.

D'Alessandro also ruled that Jersey City must pay the plaintiff's attorneys fees and costs, the amount of which will be determined in subsequent proceedings.

D'Alessandro's is one of four recent court rulings weighing in on whether draft settlement agreements are public records prior to being formally approved and signed by all parties.  Judges in Passaic and Essex County agree with D'Alessandro while a judge in Mercer County does not.

This issue is important because several weeks or months may elapse between the time a binding settlement agreement is agreed to and the time that it is formally signed by all parties.  In the meantime, the public has a need to know how much money a government agency paid out to settle a lawsuit against it.

The lawsuit plaintiff, Libertarians for Transparent Government, was represented by Walter M. Luers of Clinton.

Monday, November 7, 2016

Middlesex judge orders release of police dash-cam video.

In an October 27, 2016 written opinion, Middlesex County Assignment Judge Travis L. Francis ordered the Township of Old Bridge to release a police cruiser's dashboard camera recording of former Carteret Borough Police Director Ronald Franz's February 23, 2016 arrest for Driving While Intoxicated (DWI).

Other than the video's disclosure, which is a hotly contested issue (as explained below), Judge Francis also ruled on two other important issues:  a) absent extraordinary circumstances, basic information about an arrest (known as "Section 3(b) information") must be released regardless of whether an "investigation in progress" or criminal investigatory record" exemption applies and b) a 2006 consent order required the Old Bridge Police Department, when responding to an OPRA request, to exercise its own discretion and not rely on the prosecutor's office's instructions.

Regarding the dash-cam video, there are, at the time of this writing, two conflicting, published Appellate Division decisions--North Jersey Media Group, Inc. v. Township of Lyndhurst and John Paff v. Ocean County Prosecutor's Office--that define the scope of the Open Public Records Act's Criminal Investigatory Records (CIR) exemption. Until the Supreme Court makes a definitive ruling, Judge Francis was permitted to choose which of the two cases he wanted to apply and he chose the Ocean County case. (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.)

The CIR exemption applies only if two things are true: a) the requested record is not required by law to be made or maintained and b) the record pertains to a criminal investigation or related civil enforcement proceeding.  If either of those two prongs are false, then the record is not exempt as CIR. 

One of the differences between the the two cases is that Lyndhurst defines "law" narrowly to mean that the first prong is satisfied unless a statute, regulation, executive order or judicial decision mandates that the record be made or maintained.  The Ocean County case defines "law" more broadly, allowing lesser writings such as an Attorney General Directive to count as a "law" for the purposes of the CIR exemption.  Thus, more records are available under the Ocean County decision's definition than Lyndhurst's.

Old Bridge, in its denial of the request for the recording, followed Lyndhurst (Paff had not yet been decided when Old Bridge denied the request) finding that since no "law" (i.e. statute, etc.) required the dash cam recording to be made and because it pertained to an active, ongoing investigation by the Middlesex County Prosecutor's Office, it was exempt from disclosure.  Judge Francis, however, found that an order of the Old Bridge Police Chief, which required the cameras to activate automatically in certain cases (when the siren or emergency lights are activated, for example), was a "law" that required the videos to be made.  Judge Francis also ruled that the recording did not "pertain to" a criminal investigation because the underlying offense was a traffic violation (rather than a criminal matter) and because Old Bridge didn't prove that the video recording was taken only after the investigation began.

Separately, Judge Francis ruled that the "investigation in progress" exemption did not justify suppression of the video because disclosure would not be "inimical to the public interest" and because it likely qualified for disclosure before any investigation began.

The plaintiff in the case was Steven Wronko who was represented by CJ Griffin of Hackensack.

Sunday, October 30, 2016

New OPRA lawsuit seeks real reason why school business administrator was let go.

Update: The matter was resolved by Judge Thornton's May 11, 2017 Order and May 2, 2017 Opinion.  The court held that Plaintiff a) was entitled to "information" regarding Kotch's separation, b) was not entitled to know the "real reason" for Kotch's separation and c) was not entitled to any correspondence between law enforcement and the school district regarding Kotch's separation from employment.  Plaintiff was found to the the prevailing party and thus entitled to have the school district pay its attorney fees.

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According to a May 13, 2016 newspaper article, former Shore Regional High School District (Monmouth County) business administrator Dennis Kotch "resigned under the cloud of an investigation."  While the school district would not tell the newspaper exactly why Kotch resigned, it did attribute to anonymous sources that Kotch was "the subject of an investigation into the misuse of school funds."

In order to learn more about the matter, Libertarians for Transparent Government, a NJ nonprofit corporation (LFTG) filed a September 27, 2016 Open Public Records Act (OPRA) request seeking, among other items, Kotch's "date of separation and reason therefor" and any e-mails or other correspondence between school officials and law enforcement sent or received during 2016.  In an October 6, 2016 letter, Kotch's replacement, Corey Lowell, denied LFTG's first request because it asked for "information" (i.e. Kotch's separation date and reason) as opposed to identifiable records.  As to LFTG's request for the law enforcement correspondence, Lowell said that the request was "overly broad [and] invalid under OPRA."

On October 25, 2016, LFTG, through attorney CJ Griffin of Hackensack, filed a civil lawsuit seeking to compel Shore Regional to properly respond to the OPRA request and to pay LFTG's costs of courts and attorney fees.  In Libertarians for Transparent Government v. Shore Regional High School District and Corey Lowell, Docket No. MON-L-3750-16, Griffin argued that while OPRA generally requires requestors to ask for records as opposed to information, N.J.S.A. 47:1A-10 is different.  That section of the statute states:
an individual's name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record.
Griffin argued that this section requires OPRA custodians to disclose information about public employees (e.g. an employee's "length of service," which changes daily) regardless of whether or not that information is embodied within a specific record.  She argued that citizens, in many if not most cases, aren't familiar enough with how public bodies keep their personnel records to allow them to ask for the right record and that in many cases the information may not be recorded in writing at all.

Beyond that, Griffin argued that it is not enough for Shore Regional to just say that the reason for Kotch's separation was that he "resigned."  She cited a 1991 New Jersey Supreme Court case holding that citizens are entitled to know the real reason public employment was terminated.  That case, South Jersey Pub. Co., v. N.J. Expressway Authority, stated
[T]he court will recognize that the public interest in disclosure is intended to enable the public to make a sound judgment about the reasonableness of the Authority's decision regarding [the employee], which authorized the expenditure of public funds to continue his salary and benefits for a substantial period of time after his resignation had become effective. Without disclosure of the reasons for [the employee]'s "voluntary separation" from the Authority, the public cannot intelligently make such an evaluation.
Regarding Lowell's claim that LFTG's request for the district's correspondence with law enforcement was overly broad and thus invalid, Griffin pointed out that LFTG's request is very similar to a request that the Appellate Division in 2012 found clear enough to warrant a response.

No hearing date has yet been established by the Court and Shore Regional has not yet been formally served with the lawsuit.

Opinion: GRC should be able to award OPRA attorney fees without help from an administrative law judge.

One of the main complaints about the Government Records Council (GRC) is the length of time it takes to fully adjudicate an Open Public Records Act (OPRA) case.  For example, on October 25, 2016, the GRC adjudicated Michael L. Shelton v. Manasquan School District, GRC Complaint No. 2014-183 which was filed on April 25, 2014.  Unfortunately, case processing times that are counted in years instead of months are not uncommon. 

Making a party wait two and a half years for his or her OPRA case to conclude is not in keeping with OPRA's goal of making government records "readily accessible" and providing requestors with "a summary or expedited" adjudication process when access to records is denied. See, N.J.S.A. 47:1A-1 and 47:1A-6.

One of the many reasons for the GRC's slowness is its heavy reliance on administrative law judges to resolve factual disputes.  While it makes sense to have administrative judges preside over contested OPRA matters where a case's underlying facts are in serious dispute and extensive discovery and witness testimony is required, the GRC should refrain from farming out routine matters that the GRC's staff members are capable of deciding themselves.

For example, on October 25, 2016, the GRC nearly wrapped up Shawn G. Hopkins v. Monmouth County Board of Taxation, et al--a case which was originally filed with the GRC in January 2014.  Hopkins won his case and the only issue left to be decided was the amount of attorney fees the government agencies that denied Hopkins' requests had to pay. 

Hopkins' attorneys had filed certifications with the GRC stating the number of hours they worked on the case and their hourly rates.  What was left for the GRC to do was determine whether the hours the attorneys claimed to have worked were fair and whether their hourly rates were reasonable.  Multiplying the rates by the hours would yield the "loadstar" amount of fees which then could be adjusted upward if warranted by the novelty or difficulty of the case. 

In its October 25, 2016 opinion, the GRC decided to punt the determination of Hopkins' attorney fees to an administrative law judge.  In its decision, the GRC said that it "has limited experience in attorney fees" and was satisfied that an administrative law judge "is in the best position to resolve the parties' arguments and reach a reasonable prevailing party fee determination."

Why cannot the GRC determine the proper fee amount itself?  It has done so in other cases (see, e.g. Jeff Carter v. Franklin Fire District #2, Complaint No. 2011-228). 

It will likely take the administrative law judge another six months to a year to resolve the attorney fee issue.  And, upon receipt of the judge's recommendation, it will take an additional month or two for the GRC to affirm that fee amount. 

The parties to this matter and their attorneys have waited long enough for this case to be resolved. The GRC should not have referred this matter to the Office of Administrative Law.  Rather, it ought to have determined a fair attorney fee award itself.

Saturday, October 29, 2016

Judge rules that Trenton must disclose City Clerk's memo to OPRA requestor who was banned from the police department's Facebook page.

On October 26, 2016, Mercer County Assignment Judge Mary C. Jacobson ordered the City of Trenton to give an Edison man a copy of a memo that the City claimed was "deliberative" because it gave advice and recommendations on the City's then yet to be adopted social media policy.  Judge Jacobson also ordered City taxpayers to pay the man's legal fees for bringing his Open Public Records Act (OPRA) lawsuit.

The case, Lord v. City of Trenton, et al, Docket No. MER-L-1582-16, was filed after Richard Lord of Edison learned that comments that he posted on the Trenton Police Department's Facebook page had been deleted and that he was blocked or banned from further posting on the page.  Lord said that his comments were critical of the Department's arrest of Ed "Weed Man" Forchion.

After learning that he had been blocked or banned from the page, Lord submitted an OPRA request to City Clerk Richard M. Kachmar for a list of all users who had similarly been removed.  In response, Trenton released a list of blocked users but Lord was not on that list even though he was still blocked from the page. 

On June 10, 2016, the Trentonian newspaper reported that the police department's Facebook page had been deactivated in accordance with a memo sent to the department by Kachmar.  (The Department later reactivated its page.) In the article, Kachmar was quoted as saying that the memo was "internal" and that it was not a public record.  Kachmar's comments prompted Lord, through his lawyers Walter M. Luers and Raymond M. Baldino of Clinton, to submit another OPRA request for the memo as well as a complete list of blocked or banned users that contained Lord's user name.  In a series of confusing responses, the City ultimately denied access to Kachmar's memo and never directly responded to Lord's request for the updated banned/blocked user list.

In its response to Lord's lawsuit, the City claimed that the memo was exempt as "advisory, consultative or deliberative material" because it gave "advice and recommendations" regarding the police department's social media policy that had "not yet been fully developed or adopted."  Regarding the banned/blocked user list, the City claimed that uncertainty regarding the difference between a "banned" user and a "blocked" user justified its mishandling of Lord's request for the list.  In a filed certification, Trenton Detective Alexis Durlacher said that she released a complete banned/blocked list to Lord on September 15, 2016 and that she unblocked each user on that list.

In her October 26, 2016 Order, Judge Jacobson found that Lord's lawsuit was the "catalyst" for the City's tardy production of the banned/blocked list.  This made Lord the OPRA lawsuit's "prevailing party" and entitled him to recover from City taxpayers his attorney fees and costs of court.  The judge also viewed Kachmar's memo in camera and found that it was not exempt from disclosure.  She ordered Trenton to either disclose the memo or appeal her ruling by Friday, November 4, 2016.

Wednesday, October 26, 2016

New lawsuit seeks to ensure that NJ Insurance Underwriting Association is OPRA compliant.

Update: See our May 1, 2017 article.
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The New Jersey Insurance Underwriting Association (NJIUA) was created by the New Jersey Legislature in 1968 to provide property insurance to people who are not able to find coverage through ordinary markets.  It describes itself as "the market of last resort" for property insurance.

Like some other state-created organizations, the NJIUA does not perceive itself as being subject to New Jersey's Open Public Records Act (OPRA).  In response to a September 8, 2016 OPRA request, the NJIUA's attorney conceded that the Association had not adopted an official OPRA request form and that it had not designated an official records custodian as required by statute. 

The attorney, Hugh P. Francis of Morristown, also said that he was "reluctant" to release the names and salaries of the NJIUA's employees unless he was first informed of why that information was needed.  Section 10 of OPRA, however, makes employee names and salaries public information.

Today, attorney CJ Griffin of Hackensack filed a lawsuit--Libertarians for Transparent Government (LFTG) v. New Jersey New Jersey Insurance Underwriting Association--seeking a ruling that the NJIUA is subject to OPRA and violated the statute by not having adopting an OPRA request form and for not providing the requested name and salary information.

Friday, October 21, 2016

Kearny admits to at least five year delay in transcribing its Town Council closed session minutes. Blames lack of staffing and municipal budget woes.

In her October 20, 2016 response to a Government Records Council (GRC) Denial of Access Complaint, Patricia Carpenter, Clerk of the Town of Kearny (Hudson County), admitted that her office has not yet transcribed the minutes of Town Council nonpublic (closed or executive) meetings held as early as September 8, 2011.

In her Statement of Information (SOI) to the GRC, Carpenter wrote:
The Closed/Executive Session meeting minutes requested have not been released because they have not been transcribed. Therefore, they were not available for release when the request was received.

The Town of Kearny's municipal budget over the years in question suffered a reduction in staffing in all departments which ultimately had a negative impact on the Town Clerk's office and the many essential functions within the department.

Without the necessary staffing in the Clerk's Office due to budget constraints, the transcription of the Closed/Executive Session minutes have been delayed.

Currently, the fiscal condition of the Town of Kearny has improved and the necessary staffing should be in place to provide the requested documents by November 15, 2016.
The complaint to which Carpenter responded, Libertarians for Transparent Government (LFTG) v. Town of Kearny, GRC Complaint No. 2016-261, referenced two Open Public Records Act (OPRA) requests that Carpenter's office acknowledged but then abandoned.  In its May 10, 2016 request, LFTG requested five sets of closed minutes and resolutions, including those from September 8, 2011.  Carpenter disclosed the resolutions on May 17, 2016 but said that "additional time [is] required" to produce the minutes.  Carpenter had not responded further on that request when LFTG filed its Denial of Access Complaint on September 19, 2016.

The other request, filed on June 6, 2016, asked for the Kearny Town Council's  March 25, 2008; April 9, 2013 and May 8, 2012 closed session resolutions and minutes and, if none existed, "the minutes of the three most recently held Town Council closed sessions for which minutes can be disclosed in whole or in part."  Again, Carpenter told LFTG that she needed additional time and then took no further action to fulfill the request.  Carpenter's October 20, 2016 response to the GRC did not explain why Carpenter's office failed to disclose any of the records sought in the June 6, 2016 request.

According to the Open Public Meetings Act, N.J.S.A. 10:4-14, government agencies, including municipal governing bodies, are required to make the non-exempt portions of their closed meeting minutes "promptly available" to the public.

LFTG is being represented in this matter by Ted M. Rosenberg of Moorestown.

Thursday, October 13, 2016

Gloucester judge rules that OPRA can be used by all persons, not just New Jersey "citizens."

Georgia M. Curio, Assignment Judge for the Cumberland/Salem/Gloucester Vicinage, ruled today that a Georgia-based investigative blogger is to use the Open Public Records Act (OPRA) to obtain records from New Jersey government agencies.  In the case,  Heimlich v. Educational Information & Resource Center, et al, Docket No. GLO-L-779-16, Curio rebuffed the Educational Information & Resource Center's claim that Hoffman was not entitled to use OPRA because he "provided no evidence that [he was] a citizen of New Jersey."

Curio, sitting in Woodbury, delivered her ruling orally from the bench and is unlikely to issue a written decision.  She did, however, sign a written order on October 24, 2016.  She is the fourth judge to weigh in on the issue.  Her opinion is in accord with decisions reached by Burlington County Assignment Judge Ronald E. Bookbinder and Ocean County Judge Mark A. Troncone.  It is at odds with two decisions issued by Atlantic/Cape May Judge Nelson C. Johnson.

Heimlich was represented by CJ Griffin of Hackensack.

Wednesday, October 12, 2016

New Jersey Court records that cost $6.15 in 2015 cost $770 in 2016.

Update: 10/22/16:  I received an e-mail from Carole Cummings informing me that copies of all generated reports are "being centrally filled by the Superior Court Clerk's Office" and that the $770 charge "is consistent with the report pricing standards of the Judiciary."
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I encountered a bit of sticker shock yesterday when I received a $770 quote from the Clerk of the Superior Court to produce municipal court reports that I routinely purchased for less than ten dollars in 2015.  I use these reports to identify prosecutions under municipal code provisions of questionable legality--usually "disorderly conduct" or "loitering" codes.  And, I have used these prosecutions over the years to convince several municipal councils to repeal the outdated code provisions.  Unless I am able to find an inexpensive way to get these reports, I will have to cease my advocacy in this area.

Following is my letter and records requests to Carole Cummings, the Trial Court Administrator for the Camden Vicinage.  Ms. Cummings has always been responsive and helpful in the past and I hope that she will come through for me this time as well.

October 11, 2016

Carole E. Cummings
Trial Court Administrator, Camden Vicinage
101 South 5th Street
Camden NJ, 08103
via e-mail only

Dear Ms. Cummings:

I have placed on-line my records request form and what follows is my reason for submitting it.  Also on-line is a file of Bates numbered exhibits which are referenced below.  In addition to responding to my records request, I would appreciate it if you could provide me with any other information that will enlighten me on the Judiciary's records fulfillment procedure.

By way of background, I submitted a records request (Bates No. 1) on July 28, 2016 to the Bellmawr (Camden County) Municipal Court for that court's "NJ Automated Complaint System Law Enforcement Disposition Reports" for a three-month period beginning Friday, April 22, 2016 and ending Friday, July 22, 2016.  Within the same request I also sought the Bellmawr court's "most recently updated 'Local ACS List'."

On August 15, 2016, I considered the Bellmawr Court's failure to respond to my request a denial and filed an appeal (Bates No. 2) with your office in accordance with R.1:38-10(b). By letter dated August 17, 2016 (Bates No. 3), you informed me that my request had "been forwarded to the Superior Court Clerk's Office for resolution."  After about six weeks, I received an October 3, 2016 response (Bates No. 4) from the Superior Court Clerk's office in Trenton advising me that it will cost $770 to fulfill my request.

There are two areas that perplex me.  First, why does the Superior Court in Trenton now handle records requests that were previously handled by the municipal courts?  Second, why does fulfillment of this request cost more than one hundred times what previous, similar requests have cost?

Over the past several years, I have ordered the same reports that I requested from Bellmawr from dozens of municipal courts across New Jersey.  By using these reports, I am able to identify cases where defendants have been prosecuted for violating municipal code provisions that are unconstitutional and/or preempted by the New Jersey Criminal Code.  Being able to prove that such prosecutions have recently occurred enables me, through my position as Chairman of the New Jersey Libertarian Party's Preempted Ordinance Repeal Project, to advocate for repeal of the offending municipal code provisions. 

For example, my April 24, 2015 letter to Woodbridge (Bates No. 5 - 7) argued that the Township's Disorderly Conduct code (Bates No. 10), which created constitutionally dubious offenses such as "us[ing] loud, abusive or offensive remarks" in public, was being actively enforced by the local police department and prosecuted by the municipal prosecutor.  My proof that recent enforcement and prosecution had occurred consisted of pages from the "NJ Automated Complaint System Law Enforcement Disposition Report" (Bates No. 9) and "Local ACS List" (Bates No. 8) that I had previously obtained by way of a records request to the Woodbridge Municipal Court.  These reports, which are are the same reports that I had requested from the Bellmawr, showed that Code ¶ 30-3 was an offense still recognized by the Woodbridge Court and that the recipient of Summons No. S-2014-002630 had been convicted on March 2, 2015 of violating ¶¶ 3-30.1 and assessed $533 in fines and costs.  This was but one of dozens of similar cases that the reports revealed.  This evidence, when presented to the Woodbridge Township Council, caused the Council to repeal the Disorderly Conduct code.  See, the Home News and Tribune's June 16, 2015 article "Loitering not against the law in Woodbridge anymore."

My ability to effectively advocate in this manner depends on the prompt availability of the "NJ Automated Complaint System Law Enforcement Disposition Reports" and "Local ACS Lists" at a reasonable cost.  Up until recently, I was able to obtain these necessary reports directly from the local municipal court administrator for $.05 per page.  As evidenced by Bates No. 11, the one-hundred or so pages of reports that I had received from Woodbridge cost me $6.15 in copying and postage costs.  Other than these reports, I know of no way to identify recent enforcement of preempted and/or unconstitutional municipal code provisions. And, my experience has shown that absent an example of recent enforcement, municipal governments are apt to claim that there is no need for repeal because the offending code provision is no longer being enforced.

I am not sure why the rules changed so that I can no longer obtain these reports from the local municipal courts.  I also do not understand why reports that cost $6.15 in 2015 are cost $770 in 2016.  I am hoping that your response to the enclosed records request will help me understand what happened and provide a path by which I can continue to obtain these records for a reasonable fee.

Thank you for your attention and I appreciate your cooperation in this matter.

Very truly yours,

Sunday, October 9, 2016

OPRA lawsuit seeks Use of Force Reports filed by officers who "struggled" with "belligerent" man shortly before he died.

Prosecutor Andrew C. Carey
On Thursday, November 17, 2016 at 10 a.m., Middlesex County Assignment Judge Travis L. Francis will hear argument on an Open Public Records Act (OPRA) case that seeks the names of police officer who struggled with an allegedly belligerent man who was lying in a Highland Park street and who died shortly thereafter.  The suit also seeks Use of Force Reports, police incident reports as well as e-mails and text messages related to the incident.

The lawsuit--Libertarians for Transparent Government (LFTG) v. Middlesex County Prosecutor's Office (MCPO), et al, Docket No. MID-L-5006-16--seeks records pertaining to the June 2, 2016 death of Daniel Nagahama.  The only information thus far released about the twenty-eight year old's death is contained in the MCPO's June 4, 2016 press release entitled "Man dies hours after struggle with police."  The press release states only that Nagahama "was found on South Fifth Avenue in Highland Park on June 2, 2016 at 5:15 p.m" and that he was pronounced dead at 8:28 p.m. at Robert Wood Johnson University Hospital after "he became belligerent and struggled with" unnamed police officers who "had revived him."

The MCPO denied LFTG's request for the police incident reports and Use of Force Reports related to the incident claiming that they are Criminal Investigatory Records and thus exempt in accordance with the Appellate Division's June 11, 2015 ruling in North Jersey Media Group, Inc. v. Township of Lyndhurst.  The MCPO also refused to name the officers who had interacted with Nagahama and denied as "unduly burdensome" LFTG's request for case-related e-mails and texts sent or received by MCPO employees during a 17-day period surrounding Nagahama's death.

In her brief, LFTG's lawyer, Hackensack attorney CJ Griffin, argued that the Lyndhurst case (the case relied upon by the MCPO) was wrongly decided and that Judge Francis ought to instead follow the Appellate Division's June 30, 2016 conflicting opinion in John Paff v. Ocean County Prosecutor's Office.  Griffin wrote that the Lyndhurst case, which is being reviewed by the New Jersey Supreme Court, "has essentially shut down access to all law enforcement records that even tangentially relate to criminal investigations."  She wrote that Judge Francis is free to follow either the Lyndhurst or the Ocean County Prosecutor decision until the matter is resolved by the Supreme Court.  The MCPO filed an opposition brief on October 21, 2016.

The Borough of Highland Park was also named in the lawsuit because LFTG also requested records from the Borough's police department that related to Nagahama's death.  In its response, the Borough said that it "has been instructed by the MCPO to not release any documents while the MCPO's investigation is pending. As the MCPO is the lead law enforcement agency for Middlesex County, the Borough must follow this order, and accordingly cannot release any documents independently." 

The hearing is open to the public and press.  Its date, hour and location, however, are subject to change.  Anyone who plans to attend, should call the court offices at 732-519-3413 the day prior to confirm that the hearing date and hour have not changed.

Mercer judge to rule on disclosability of draft settlement agreements and correspondence.

Update 10/22/16:  On October 14, 2016, Judge Jacobson ruled against LFTG and dismissed its complaint. The transcript of the proceedings are on-line here.

Update 01/27/17:  Plaintiff appealed and the opening appeal brief is on-line here.
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On September 6, 2016, I wrote about cases against Caldwell Borough (Essex County) and Jersey City (Hudson County) where courts were asked to determine whether settlement documents traded between the parties to a lawsuit (where one party is a government agency) are subject to disclosure under the Open Public Records Act (OPRA).  (The plaintiff, Libertarians for Transparent Government (LFTG), won its case against Caldwell, with Judge Frank Covello ordering Caldwell to pay $5,200 for LFTG's costs and attorney fees.  Judge Daniel D'Alessandro, who is handling the Jersey City matter, heard preliminary arguments on September 30, 2016 and ordered more briefing.)

On October 14, 2016, Mercer County Assignment Judge Mary C. Jacobson will hear another, similar case at 2 p.m. at the New Criminal Courthouse, 400 S. Warren Street in Trenton.  In that case, Libertarians for Transparent Government v. College of New Jersey, Docket No. MER-L-1534-16, Judge Jacobson will determine whether a settlement e-mail exchanged between the College and the attorney for an age discrimination plaintiff was subject to disclosure under the OPRA. (The lawsuit, I later learned, settled for $145,000.)

LTFG is being represented by Richard M. Gutman of Monclair and the hearing is open to the press and the public.  Those who wish to attend are urged to call the court office at 609-571-4499 prior to the hearing to ensure that it hasn't been postponed.

Thursday, October 6, 2016

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.

Michael Doss v. Borough of Bogota, et al.
Bergen County, Docket No. BER-L-4296-16
Hon. Bonnie J. Mizdol, A.J.S.C.
July 13, 2016
Click here for the court's decision.

Summary:  This case discusses the records custodian's duty to adequately search for responsive records and found that the custodian's search was insufficiently thorough.  The case also balances a government employee's privacy interest in his or her government-issued cell phone billing records versus the public's right to know.

Wednesday, October 5, 2016

Appellate Division to rule on school board's closed session minutes redaction case.

An interesting appeal awaits an Appellate Division decision.  The case challenges a Gloucester County judge's ruling that a school district, in response to an Open Public Records Act (OPRA) request, could redact 100% of the substantive portions of the minutes of a nonpublic (closed or executive) meeting held some fourteen months earlier.

The case is Dean Smith v. Swedesboro-Woolwich School District, et al, Appellate Docket No. A-000840-15 and links are provided for Smith's Brief and Appendix, the school board's Brief and Appendix and Smith's letter in lieu of a reply brief.  The minutes at issue apparently contain board members' discussion regarding renewal of the superintendent's contract.

Appellant Smith's attorney, Donald M. Doherty, Jr. of West Berlin, argued that suppressing 100% of the private discussion was contrary to a 1991 New Jersey Supreme Court case that interpreted an exception to the Open Public Meetings Act's that allows public bodies to discuss personnel matters in private.  That Court held that the exception was "'designed to enable the public body to determine the appropriate action . . . [and] not to withhold from the public either the public body's determination' or the rationale for such determination."  Doherty said that his client can discern nothing from the heavily redacted minutes that disclose what action the Board took or why the action was taken.

Doherty argued that even though the school board provided some justifications for the redactions, including exemptions for personnel records, attorney client privilege and the advisory consultative and deliberative privilege, the justifications were not specific to each line that was blacked out.  He wrote that given the above cited Supreme Court case, the school board was burdened with showing that there was some "particularized need to continue withholding the details of the minutes some 14 months after the meeting occurred."  Doherty argued that "blanket statements" of privilege "do not allow the public to know or discern with any reasonable clarity what was discussed in the nonpublic meetings or what actions were taken."

The hearing in the trial court was conducted by Gloucester County Assignment Judge Georgia M. Curio who on September 8, 2015 dismissed Smith's case after having heard argument on August 27, 2015.  Curio, who had the benefit of reviewing the unredacted version of the minutes, said that she sympathized with Smith because he "is flying blind" but ruled that she was "satisfied that each and every line is subject to one or the other, and sometimes more than one appropriate exemptions."

Friday, September 30, 2016

Settlement letter ruled not to be exempt under OPRA. Caldwell ordered to pay $5,200 in attorney fees and costs.

On September 14, 2016, Essex County Superior Court Judge Frank Covello issued a verbal ruling that a June 22, 2016 settlement confirmation letter exchanged between the Borough of Caldwell (Essex County) and the plaintiff in a lawsuit against the Borough was disclosable under the Open Public Records Act (OPRA) even though the settlement had not been formally approved.  On September 27, 2016, Judge Covello ordered Caldwell to pay the plaintiff's attorney, CJ Griffin of Hackensack, $5,199.84 in court costs and attorney fees.

Background on the case, Libertarians for Transparent Government (LFTG) v. Borough of Caldwell, et al, Docket No. ESX-L-5197-16, is on-line here.

Sunday, September 25, 2016

Released documents claim that former Commercial Township Mayor used racial slur against fellow Township Committee member.

A harassment complainant, whose name has been redacted in accordance with a court's order, claimed that former Commercial Township (Cumberland County) Mayor Judson Moore said that he couldn't rely on Township Committeeman Fletcher Jamison's support in resolving a "horrible union contract" because Jamison would "get in his ni**er mind frame and does not know how to make any decisions."  Moore flatly denied using the slur against Jamison, who is African-American, and said that if the complainant "made that allegation, then he's lying."

Committeeman Ronald L. Sutton, Sr. then interjected his recollection of Moore having said "that the black was coming out in" Committeeman Jamison because Jamison was opposed to buying a snow plow.  When asked by Township Solicitor Thomas Seeley whether Sutton's comment was accurate, Moore is quoted as saying "I don't know what he's talking about."  After this exchange, Jamison said that he thought Moore did use the racial slur and that because of it "our friendship changes and I just don't, I'll be honest with you, I don't feel comfortable around you."

This candid exchange is taken from sixty-three pages of redacted closed meeting minutes that the Township was ordered to disclose in response to an open government organization's June 6, 2016 Open Public Records Act (OPRA) lawsuit.  The minutes are very detailed and provide insight into not only the political machinations within this close-knit, rural community that borders the Delaware Bay, but also into the personal relationships among Township officials and employees, many of whom have known each other their entire lives.

By way of background, Libertarians for Transparent Government (LFTG), a New Jersey non-profit corporation, filed suit against the Township on June 6, 2016 in order to learn the nature of four harassment complaints that caused Mayor Judson Moore's abrupt resignation on March 12, 2016.  On September 1, 2016, Cumberland County Assignment Judge Georgia M. Curio ordered the Township to disclose two sets of closed minutes and a Memorandum of Understanding between the Township and Moore.  In addition to compelling disclosure of these documents, Curio also required the Township to pay the attorney fees of LFTG's lawyer, Hackensack attorney CJ Griffin.

The Memorandum of Understanding (MUA) is straightforward.  It prevents Moore from seeking public office or employment in the Township and forbids him from making "excessive or multiple OPRA requests" or visiting the municipal building except for "general business as a township taxpayer."  The MUA, which was signed by each of Moore's harassment complainants, specifically forbids Moore from harassing the complainants, as well as their friends and relatives, and establishes mediation if Moore violates any of the MUA's provisions.

The Township Committee's February 25, 2016 and March 11, 2016 closed meeting minutes are more meandering and are more difficult to follow because a significant number of words and phrases have been redacted from them.  At its February 25th closed meeting, at which Mayor Moore was not present, Committee members Sutton and Jamison and Township Clerk Hannah E. Nichols and Solicitor Seeley discussed the harassment complaints that four Township employees brought against Moore.  At the March 11th closed meeting, Sutton, Jamison, Nichols and Seeley were joined by Mayor Moore and Moore's attorney James Schroeder to discuss the allegations.

Other than the allegedly uttered racial slur, two complainants said that Moore pressured Township staff to create a list of residents' names and addresses (as opposed to the property owners' names and addresses) so that a flyer concerning the Laurel Lake Emergency Medical Services (EMS) could be mailed out to those residents.  Moore allegedly wanted the residents' names and addresses downloaded into an Excel file that could be e-mailed to a local printer so that the residents' addresses could be printed on the flyers.  When the complainant told Moore that the information could not be downloaded in that manner, he became disagreeable and allegedly sent an "upsetting e-mail."   The complainant alleged that Mayor Moore said that the file of residents' names and addresses could be used for "such things as the fire company, township calendars, and his campaign."   

One of the two complainants said that Moore's request "really made [her] uncomfortable" because she didn't believe that it was right to do work for the EMS during Township time and because Township resources should never be used for an election campaign.  The other said that Moore told her that the project was a priority and that they were "under strict deadline to move ahead with the mailer."  She said that she "was upset over the email because Mr. Moore was aware of the work load of the office [and] was aggravated that his project was not made an immediate priority over other required office and township duties."

At the March 11, 2016 meeting, Moore neither confirmed nor denied that he ever told the complainants that he wanted the list for his campaign.  His attorney, however, offered that if the word "campaign" was used, Moore likely meant it in the sense of the EMS squad conducting "a direct mail campaign."

One of the complainants said that Moore, only a week after the complainant was hired, called her into a conference room to persuade her to accept a $5,000 cash buy-out instead of receiving Township-funded health insurance for her family.  She said that because her "family was in desperate need of benefits" she felt "rather bullied" by Moore's persuasion attempt.  Moore's response to the allegation is Clintonesque.  He admits that he did talk to the employee and tried to convince her to give up her health insurance in exchange for the $5,000 buy-out but that he "didn't do it deliberately."

Another complainant said that Moore pestered him about getting divorced and marrying someone with whom the complainant had been in a two-year relationship so that the Township's health insurance premium would be reduced. Moore admitted to having spoken to him regarding marital status on "maybe four or five occasions" and said that if he made such a comment in public, it was done "in a joking manner."  Moore admitted that he "was quite concerned" about the savings that would have been realized had the complainant adjusted his marital status.

Still another complainant said that she was asked by Moore to retire even though she wasn't old enough to collect social security and could not afford to retire.  The complainant said that Moore falsely told her that another similarly-situated employee was going to retire and that he had spoken with both Sutton and Jamison about the complainant's retirement.  In response to Seeley's question of whether he made comments about the complainant retiring, Moore's answer was less than clear:  "If I did, and I won't say that I didn't, but she was up for that job and we would talk about the time that she would retire and all the things that [redacted] would change and do in that office, so [redacted] was looking forward to retiring, but [redacted] was [redacted] and she stayed until she wanted to retire."

By the end of the March 11, 2016 meeting--which ran for three and half hours--Sutton expressed that he didn't feel that the Township could risk keeping Moore on as Mayor any longer. "The only resolution I see is Jud Moore needs to resign and not seek public office in Commercial Township . . . Let's take care and put this to bed for the sake of the employees and the taxpayers," Sutton said. On the last page of the March 11th minutes, Jamison made a motion to turn the harassment complaints over to the Joint Insurance Fund for a formal investigation.  Sutton and Jamison voted in the affirmative and Moore abstained.  Moore resigned the following day.

Postscript:

1. There are several confusing references in the March 11th meeting minutes to Moore allegedly referring to himself (or perhaps being referred to by others) as "Lucifer."  Commmercial residents are invited to open up the minutes file and do a word search on "Lucifer."

2. There is presently some ambiguity regarding the Township's responsibility to disclose the Committee's March 14, 2016 closed meeting minutes. I will update this article when that ambiguity is resolved.


3. Other less important documents that Curio ordered disclosed were a March 1, 2016 letter and a March 3, 2016 letter.

Tuesday, September 13, 2016

Downloadable PDF file on Berlin Township's website tells citizens that OPRA form is no longer available on-line.

Is it possible that Berlin Township (Camden County) is trying to dissuade citizens from seeking records under the Open Public Records Act (OPRA)?  One could argue that  this is exactly what Mayor Phyllis Magazzu and other Township officials are trying to do.

If one goes to the Township's main page and clicks the "Forms" button, there's a link for "OPRA requests."  But, when one clicks on the link to download the PDF file, citizens will find that the PDF is not the OPRA form, but a letter that says that the Township is "sorry to inform you that [the OPRA request] form is no longer available on line." 

But, not to worry.  Citizens who "are interested in filing an O.P.R.A. request" are given the convenient option of "com[ing] to the Clerk's Office located at 135 Route 73 South, West Berlin, NJ 08091 to obtain the proper form."

Fortunately, ever since the Appellate Division's 2009 decision in Renna v. Union County, requests do not need to be submitted on any specific form.  Those who wish to submit an OPRA request to Berlin Township can do so by sending an e-mail with "OPRA request" in the subject line to Township Clerk Cathy Underwood at CUnderwood@BerlinTwp.com.

Thursday, September 8, 2016

Burlington Judge rebuffs PBA, orders disclosure of redacted log of internal affairs complaints against county corrections officers.

In an August 31, 2016 ruling, Burlington County Assignment Judge Ronald E. Bookbinder denied Burlington County's and the New Jersey Police Benevolent Association's (PBA) bid to reverse his previous decision calling for disclosure of a redacted list of Internal Affairs complaints against corrections officers at the Burlington County Correctional and Detention Facility.

In his ruling in John Paff v. Burlington County, et al, Docket No. BUR-L-36-15, Bookbinder wrote that disclosure of the list, with the names of the officers redacted, will help me to "research the frequency and nature of complaints brought against Burlington County Corrections Officers" without jeopardizing "the privacy interests and potential safety concerns of the officers named on the list." 

In response to the PBA's argument that the list should be suppressed in its entirety, Bookbinder wrote that "New Jersey courts have long recognized that police officers are held to a high standard of conduct" and that "there are strong public policy concerns that weigh in favor of the release of the requested record."

Bookbinder's decision does not go as far as an October 16, 2014 decision by former Bergen County Assignment Judge Peter E. Doyne in John Paff v. Bergen County, et al., Docket No. BER-L-7739-14.  That decision, which is presently under appeal, held that I was entitled to the list of complaints with the officers' names disclosed.

It is presently unknown whether Burlington County or the PBA will appeal Bookbinder's ruling.

Bookbinder's decision is consistent with a May 26, 2015 decision in John Paff v. Warren County, et al, Docket No. WRN-L-417-14 by Superior Court Judge John H. Pursel.  There, Warren had given me a list of Internal Affairs complaints with the officers' names redacted and Pursel held that I was not entitled to an unredacted version of the list. 

The only other case I filed seeking a log of corrections officer Internal Affairs matters was John Paff v. Cape May County, Docket No. CPM-L-373-14.  In that case, the County turned over the list prior to the court ruling on the case.

I am  being represented in the Burlington and Bergen cases (and was represented in the Cape May and Warren cases) by Donald M. Doherty of West Berlin.

Tuesday, September 6, 2016

Two OPRA cases seeking draft settlement agreements and correspondence to be heard this month.

Judges in Essex and Hudson Counties will hold hearings this month to determine whether settlement correspondence and draft agreements traded between the parties to a lawsuit (where one party is a government agency) are subject to disclosure under the Open Public Records Act (OPRA).  

The first hearing will be held before Essex County Superior Court Judge Frank Covello at 4 p.m. on Wednesday, September 14, 2016 at the Hall of Records 465 Dr. Martin Luther King, Jr. Boulevard, Newark.  The case being heard is Libertarians for Transparent Government (LFTG) v. Borough of Caldwell, et al, Docket No. ESX-L-5197-16.  At issue is whether a June 22, 2016 settlement confirmation letter exchanged between the parties was disclosable under OPRA even though the settlement had not formally been approved by the Garden State Municipal Joint Insurance Fund Board of Commissioners at the time LFTG's June 25, 2016 OPRA request was received.  In the settled case, DeVito v. Borough Caldwell, Federal Case No. 2:13-cv-0678, the court had been advised on June 21, 2016 that it had been settled.

On September 14, 2016, Judge Covello ruled that the June 22nd letter was responsive to the OPRA request and that there was no lawful reason allowing Caldwell to withhold it.  On September 27, 2016, Judge Covello ordered Caldwell to pay the plaintiff's attorney $5,199.84 in court costs and attorney fees.

The second hearing will be held before Hudson County Superior Court Judge Daniel D'Alessandro at 1:30 p.m. on Friday, September 30, 2016, at the Brennan Courthouse, 583 Newark Avenue, Jersey City. The case being heard is Libertarians for Transparent Government (LFTG) v. City of Jersey City, et al, Docket No. HUD-L-2952-16.  At issue is whether draft settlement agreements or settlement correspondence exchanged between Jersey City's lawyers and the plaintiff's attorney were disclosable even though a formal, signed settlement agreement did not exist at the time of LFTG's July 3, 2016 OPRA request. The litigation for which the settlement was sought is Tevin Henry v. Jersey City Police, Federal Case 2:14-cv05480 which was marked settled by the court on June 29, 2016.  The formal settlement agreement was signed on July 15, 2016.

The two cases seek an outcome similar to Judge Thomas F. Brogan's September 1, 2016 ruling in Libertarians for Transparent Government (LFTG) v. William Paterson University et al, Docket No. PAS-L-1541-16.  In that case, Judge Brogan ruled that since the most important settlement terms had been agreed to and since the settlement had been reported to the court and was enforceable at the time of the OPRA request, a draft of the settlement that contained those terms was disclosable under OPRA.

LTFG is being represented in the Essex case by CJ Griffin of Hackensack and by Walter M. Luers of Clifton in the Hudson case.  Both hearings are open to the press and the public.  Those who wish to attend are urged to call the court offices (Essex/Covello at 973-776-9517 and Hudson/D'Alessandro at 201-795-6650) prior to the hearing to ensure that it hasn't been postponed.



OPRA win: Passaic judge orders disclosure of draft settlement agreement.

Update: On February 24, 2017, Deputy Attorney General Lauren A. Jensen, on behalf of William Paterson University, filed an appeal of Judge Brogan's order.  The transcripts are on-line here.  The State's opening appellate brief is here.
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On September 1, 2016, Passaic County Superior Court Judge Thomas F. Brogan ruled that William Paterson University violated the Open Public Records Act (OPRA) by not disclosing a draft of a settlement agreement that the parties to a lawsuit had exchanged with each other. Brogan, however, did not issue his written order memorializing his findings until February 22, 2017.  In a January 10, 2017 Order, Brogan awarded the plaintiff's attorney $30,350 in costs and attorney fees.

Judge Brogan, in a oral decision delivered from the bench, ruled that since the most important settlement terms had been agreed to and since the settlement had been reported to the court and was enforceable at the time of the OPRA request, a draft of the settlement that contained those terms was disclosable under OPRA.  This is the first decision of its kind in New Jersey and background on the case is available in a June 7, 2016 NJ Open Government Notes article

It is an important decision.  As author of NJ Civil Settlements, a blog which reports settlements of lawsuits against government agencies and officials, I have often encountered situations where, in response to an OPRA request, I am told that the settlement agreement is "not yet available" even though a meeting of the minds has been reached among the parties and the matter has been marked "settled" in the court's records.  The typical justification for the denial is that the settlement agreement has not yet been formalized or that it has not received the signatures of all parties.

It sometimes takes months for lawyers to work out all the minor details and gather all the signatures. For example, Brennan v. William Paterson University, et al, Federal Case No. 2:11-cv-06101 (the basis of the present case) was reported "settled" to the court on March 15, 2016.  Yet, the agreement wasn't finalized and publicly disclosed until nearly two months later--May 11, 2016.  It is unfair to deprive the public of the essential settlement terms (e.g. how much money the plaintiff received) while the minor settlement details are being ironed out.

I was represented in the matter by Richard M. Gutman of Montclair.  William Paterson University was represented by Deputy Attorney General Lauren A. Jensen.  After Judge Brogan issues his written order, the University will have 45 days to file an appeal if it chooses to do so.

Monday, September 5, 2016

Judge rules in Cumberland County Open Public Records Act (OPRA) case.

Update:  Commercial Township signed a settlement agreement requiring the Township to pay $8,000 to the Plaintiff's attorney.
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On Friday, September 1, 2016, Cumberland County Superior Court Assignment Judge Georgia Curio ordered Commercial Township to disclose minutes of Township Committee meetings at which the circumstances surrounding the former mayor's abrupt resignation were discussed.  Curio also ordered disclosure of a Memorandum of Understanding the Township entered into with the former mayor regarding his resignation. 

The case centered on former Mayor Judson Moore's abrupt resignation which he originally attributed to having been "too busy with life."  Moore had resigned on March 12, 2016 when four Township employees' harassment grievances against him were under investigation.  Judge Curio ruled that the harassment grievances--which she said did not allege sexual harassment--and the notes of interviews between Moore's alleged victims and Township officials were exempt from disclosure.

Background on and documents filed in the case, Libertarians For Transparent Government v. Commercial Township, et al, Docket No. CUM-L-402-16, are available in a June 9, 2016 NJ Open Government Notes article.

Judge Curio also ordered that Commercial Township must pay the Libertarian organization's costs of court and attorney fees.  She ruled that the Memorandum of Understanding and the meeting minutes may be redacted to shield the harassment complainants' identities. 

The meeting minutes, Memorandum of Understanding and any other records the Township discloses will be uploaded to this blog as soon as they are received.

Saturday, August 20, 2016

Lawsuit tests whether "Intergovernmental Transfer Agreements" are disclosable under OPRA.

On Thursday, October 27, 2016, 10:30 a.m., Mercer County Assignment Judge Mary C. Jacobson will hear argument on whether "Intergovernmental Transfer Agreements"--documents that are completed when civil service employees transfer from one job to another--are public under the Open Public Records Act (OPRA).

In Darnell Hardwick v. Civil Service Commission, et al, Docket No. MER-L-1638-16, Hardwick requested the transfer applications submitted by five police officers who were terminated by the Camden City Police Department and then re-hired by the Camden County Metro Police Department. Civil Service Commission Records Custodian Peter J. Lyden, III denied Hardwick's request in its entirety claiming that the records were exempted by OPRA's personnel records exception. 

But, Walter M. Luers, Hardwick's lawyer, argues that the Commission should have released redacted versions of the records because an exception to OPRA's personnel records exception requires certain basic information about employees to be disclosed.  Luers argues that the Commission, as it has done in the past, should disclose the applications "to the extent that they show payroll information, employee names, titles, positions, dates of separation, etc."  Luers characterizes the transfer applications as being "ministerial in nature, [containing] basic salary and employee title information, and [which] do not contain sensitive information, other than personal information that can (and has been) redacted in the past."

The hearing, which is open to the public, will be held in the New Criminal Courthouse, 400 S. Warren Street in Trenton.

Tuesday, August 9, 2016

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.

Fran Brooks v. Township of Tabernacle, et al.
Burlington County, Docket No. BUR-L-43-15
Hon. Ronald E. Bookbinder, A.J.S.C.
June 21, 2016
Click here for the court's decision.

Summary:  Requestor entitled under both the Open Public Records Act (OPRA) and the common law right of access to financial information contained in documents submitted to Tabernacle Township by a property owner in support of his application for farmland assessment. Township to pay requestor's attorney fees and costs.

Note: Judge Bookbinder's opinion is labeled as "tentative."  My understanding is that despite this label, the opinion was later accepted as "final" by the court.

OPRA lawsuit seeks to find out if prosecutor's employee who allegedly failed drug test was forced to resign.

Update: Judge Troncone ruled against the plaintiff and dismissed the complaint.  The decision is on-line here.  The matter has been appealed and Plaintiff's opening brief and the Prosecutor's opposition brief are on-line.

N.J.S.A. 47:1A-10 requires public employers to disclose the following information regarding their employees: "name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received."  On September 16, 2016 at 1:30 p.m. Ocean County Superior Court Judge Mark A. Troncone will hear an Open Public Records Act (OPRA) case that seeks to determine how much information a government employer who forces an employee to resign under threat of removal must disclose in response to an OPRA request for the "reason" for the employee's separation from employment.

After receiving a tip that an employee who worked in the evidence room at the Ocean County Prosecutor's Office (OCPO) was forced to resign after failing a random drug test, Libertarians For Transparent Government, a NJ nonprofit corporation (LFTG) sought the "reason" underlying the employee's separation from employment.  LFTG believed that if it could confirm that the evidence room worker, referred to as "John Doe" in the lawsuit, was fired because of failing a drug test, that fact would be of legitimate interest to the public, particularly criminal defendants who were being prosecuted in Ocean County.

In response to LFTG's OPRA request, the Ocean County Prosecutor's Office disclosed only that John Doe had resigned, provided the effective date of resignation and refused to say whether the resignation was voluntary or compelled.  LFTG filed a lawsuit seeking the real reason underlying Doe's resignation.  In her brief, LFTG's attorney CJ Griffin of Hackensack, argued that it is not sufficient for a government agency to simply say that an employee "resigned" in cases where the resignation was forced by a threat of dismissal.

Also on line are the OCPO's opposition to the relief sought and LFTG's reply brief

Tuesday, July 19, 2016

Fourth judge asked to weigh in on non-residents' OPRA rights.

Three trial level judges have ruled on the question of whether non-residents have an enforceable right to file Open Public Records Act (OPRA) requests with New Jersey governmental agencies.  So far, Burlington County Assignment Judge Ronald E. Bookbinder and Ocean County Judge  Mark A. Troncone have ruled that they do and Atlantic/Cape May County Judge Nelson C. Johnson has ruled that they do not.  And, at least one of those cases is under appeal

In a June 24, 2016 lawsuit, Peter M. Heimlich, represented by CJ Griffin of Hackensack, as asked Gloucester/Salem/Cumberland County Assignment Judge Georgia M. Curio to rule on the same issue.  The case, Heimlich v. Educational Information & Resource Center, et al, Docket No. GLO-L-779-16 is currently pending a hearing for which no date has yet been set.

Monday, July 18, 2016

NJ Supreme Court grants certification in John Paff v. Galloway Township.

On July 15, 2016, the New Jersey Supreme Court granted certification (i.e. agreed to review) an April 8, 2016 Appellate Division ruling that held that the Open Public Records Act (OPRA) "does not require the creation of a new government record that does not yet exist at the time of a request, even if the information sought to be included in the new government record is stored or maintained electronically in other government records."

For those who wish to read the legal arguments that led to the Supreme Court's acceptance of the case, they are linked below: