Wednesday, February 24, 2016

Fifteen NJ State Police matters pending before OAL.

On February 18, 2016, I wrote about contested disciplinary charges against State Troopers Kenneth Franco and Georgina Sirakides that I had obtained by making an Open Public Records Act (OPRA) request to the New Jersey Office of Administrative Law (OAL).

While writing the article, I noticed that both Franco's and Sirakides' OAL docket number had a prefix of "POL."  It occurred to me that perhaps, if asked, the OAL could filter its case management database to provide me a list of all open cases with that prefix.  I asked Pat Mulligan, the OAL's records custodian, and he provided me with a list of fifteen cases that are on-line as an Excel file here.  (I am not certain whether these cases are all disciplinary matters--it is possible that they are other types of cases.)

Any interested citizen could find out more about any of these cases by submitting an OPRA request to the OAL for the case's pleadings.

Friday, February 19, 2016

Appeal seeks reversal of judge's ruling that OPRA requestors don't have to reside in New Jersey.

As I reported on January 22, 2016, Burlington County Assignment Judge Ronald E. Bookbinder ruled last year that records requestor Harry Scheeler does not have to reside in New Jersey in order to use and enforce his rights under the Open Public Records Act (OPRA).

On January 20, 2016, the Atlantic County Municipal Joint Insurance Fund, the defendant in the case, appealed Bookbinder's decision as well as his ruling that required the Fund to pay Scheeler's attorney, CJ Griffin of Hackensack, $18,326.10 in fees and costs.

It will probably take a year or more for the Appellate Division to rule on this case.

Court rules on Meetings Act's "anticipated litigation" exception.

In a January 28, 2016 decision, Monmouth County Superior Court Judge Paul X. Escandon ruled in Kash v. Borough of Freehold, et al, Docket No. MON-L-2814-15 that Freehold Borough's Redevelopment Entity's decision to enter into nonpublic (closed or executive) session because of the "anticipated litigation" exception embodied within N.J.S.A. 10:4-12(b)(7) did not violate the Open Public Meetings Act.  Even though a land use challenger did not directly threaten the Borough with litigation, his lawyer's inquiries to the Borough's lawyer about whether he would be permitted to cross-examine the applicant's witnesses and the appeal process if his bid to cross-examine was denied justified the closed session.

Judge Escandon also ruled, among other issues presented, that Borough Mayor J. Nolan Higgins' ownership of a funeral home near the property that was the subject of the application did not constitute a conflict of interest that precluded Mayor Higgins from participating in the application.

OPRA's "immediate access" provision tested in GRC filing.

Update: In its March 27, 2018 decision, the Government Records Council found that the Clifton Board of Education did not violate OPRA by refusing to immediately provide Sadrakula with a copy of the contract.
The New Jersey Government Records Council has been asked to enforce a former Clifton City councilwoman's right to "immediate access" to a contract between the Clifton Board of Education and a contractor who was hired to remove trees from a local school.

The right to immediately access certain government records is set forth in N.J.S.A. 47:1A-5(e) which states that "immediate access ordinarily shall be granted to budgets, bills, vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information."

According to her February 17, 2016 Denial of Access Complaint, former City councilwoman Mary Sadrakula was initially "given the runaround" when she visited the school board's offices on February 16, 2016 to get a copy of the board's contract with a tree removal contractor.  After initially being told that "she could not review the requested records," she was later allowed to look at the records but was refused photocopies of them and was not allowed to photograph them with her cell phone.

According to the complaint, filed by Hackensack lawyer CJ Griffin, a board employee had already made copies of the requested records, but taunted Sadrakula by making "a show of tearing up the copies."

The school board told Sadrakula that she would receive copies of the records in seven business days.  But, Sadrakula wanted copies of the records immediately so that she could bring them to a February 17, 2016 school board meeting.  Sadrakula claims that "the only reason the [school board]  did not want [her] to have the requested records in her possession is because they did not want her to have the records for the meeting."

Thursday, February 18, 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.

John Paff v. Township of Neptune
Monmouth County, Docket No. MON-L-621-15
Hon. Lisa P. Thornton, A.J.S.C.
January 26, 2016 (Order was issued on February 18, 2016)
Click here for the court's decision.

Summary:  OPRA requires disclosure of police dash cam video that captured a man who allegedly resisted arrest and obstructed justice.  Township to pay plaintiff's attorney fees and costs. Earlier blog post on this lawsuit is here.

Wednesday, February 17, 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.

Edward F. Correa v. City of Jersey City
Hudson County, Docket No. HUD-L-3903-15
Hon. Joseph A. Turula, J.S.C.
February 11, 2016
Click here for the court's decision.

Summary:  Spreadsheet or text file from City's "E-Ticket" system (a database of traffic summonses) is available at no cost under both OPRA and the common law right of access.  City to pay plaintiff's attorney fees and costs

Tuesday, February 16, 2016

Do internal affairs records become public when they are admitted into evidence a public hearing?

Update: I just received word that the County has recognized the weakness of its case and has agreed to disclose the records.

On Monday, February 22, 2016 at 1:30 p.m., Camden County Superior Court Judge Anthony M. Pugliese will hear argument on whether the Open Public Records Act (OPRA) and the common law entitle a Camden County NAACP official to access internal affairs and disciplinary records of a former Camden County Corrections officer who allegedly exchanged racist text messages with coworkers.

In Hardwick v. County of Camden, Docket No. CAM-L-215-16, Darnell Hardwick argues that although the records he sought were internal affairs records, any confidentiality those records possessed was lost when they were entered into evidence before a state administrative court that heard former Officer Thomas McNulty's appeal of his firing.  Hardwick is represented by Walter M. Luers of Clinton.  (As noted in Hardwick's brief, internal affairs records are not necessarily exempt under OPRA even if they are not entered into evidence before a court or administrative tribunal.)

Those interested in attending the February 22, 2016 public hearing should call Judge Pugliese's chambers at 856-379-2369 the morning of the hearing to make sure that it hasn't been adjourned.

Monday, February 15, 2016

Upcoming public discussion: Should video from police cameras be off-limits?

Senator Paul A. Sarlo
On Tuesday, February 23, 2016, the Bergen County NAACP will host a public forum to discuss proposed legislation that seeks to prevent public access to all police camera recordings and 911 calls.  The forum, which is open to all, will begin at 7 p.m. at the Teaneck High School Media Center at 100 Elizabeth Avenue.

At issue is Senate Bill 788, sponsored by Senator Paul A. Sarlo (D-Bergen/Passaic), which would amend the Open Public Records Act (OPRA) so that "law enforcement camera recordings" and "9-1-1 audio recordings or transcripts" could not be disclosed to the public.  Specifically, S788 would add the following two exceptions to OPRA:
  • law enforcement camera recordings, except for use by any person authorized by law to have access to the recordings or for use by any government agency, including any court or law enforcement agency, for purposes of the administration of justice;
  • 9-1-1 audio recordings or transcripts of a 9-1-1 call; 
In today's world, police are increasingly using cameras (particularly dashboard-mounted cameras in patrol cars and body cameras worn by officers).  Video from those cameras, which is an objective--and sometimes the only objective--record of police encounters with the public, is a valuable tool for those who want to hold police accountable to the public they serve.  Sarlo's bill would block individuals and private organizations from accessing police recordings and would restrict such access to law enforcement and other government agencies.

In his February 8, 2016 letter to Bergen NAACP President Anthony Cureton, Sarlo attempted to justify the bill.  Sarlo's letter, however, is erroneous in at least three respects.

First, Sarlo claims that the legislation's "two main goals" are to a) protect the privacy of those who appear on the recordings and b) "make it easier for people who are recorded to obtain their own recordings." Yet, there is nothing in the text of the bill that makes it "easier" for people "to obtain their own recordings."  Rather, the bill prohibits disclosure of these records to everyone outside of government.

Second, Sarlo claims that he agrees "100% with people who want police recordings . . to weed out bad officers."  He then states that his bill will foster police accountability by allowing the people who are in the police recordings to obtain those recordings.  According to Sarlo, police accountability will not be hobbled by his bill because the people who are in the recordings (or their next of kin) will be "free to do whatever they want with [the recording] including giving it to the press or posting it on social media."

As stated above, Sarlo's bill does not give those who appear in police videos access to those recordings.  But even if it did, it is doubtful that many people captured in police videos where police wrongdoing occurred would obtain the videos for the media or post them on-line. Those people, likely fearful of police retaliation, would probably shy away from submitting an OPRA request to very police departments that they believed victimized them.

Better policy would be allow all people and organizations access to otherwise non-exempt video recordings and 911 calls.  This way, public interest groups such as the American Civil Liberties Union and the New Jersey Libertarian Party's Police Accountability Project could access video recordings of police encounters and bring incidents of suspected police wrongdoing to public light.

Third, Sarlo claims that police videos, if disclosed, could violate a citizen's reasonable expectation of privacy.  As an example, Sarlo relates his family's own 911 call when he suffered a severe medical emergency at home.  Sarlo states:
The 9-1-1 recording would have recorded my wife, scared and emotional, graphically describing my condition and symptoms to the 9-1-i operator. The recording from the police officer's body camera, if he had been wearing one, would have shown me lying halfdressed and unconscious on my bedroom floor, then being shocked to life with the AED and then being administered CPR by the officer. I thought about how emotionally scarred my wife and children would be if these recordings appeared in the news media or were posted on social media.
But, Sarlo's bill would place all police videos off limits, even those that capture police encounters that occur on a public sidewalk or other public place where those in the videos have no expectation of privacy.

And, Sarlo's privacy concerns are already addressed by current law.  OPRA, specifically N.J.S.A. 47:1A-1 states that "a public agency has a responsibility and an obligation to safeguard from public access a citizen's personal information with which it has been entrusted when disclosure thereof would violate the citizen's reasonable expectation of privacy."  In cases where a person's privacy may be violated by disclosure of a public record, New Jersey courts have held (see, e.g. Burnett v. County of Bergen, 198 N.J. 408, 422-23 (2009)) that courts must balance OPRA's mandate of disclosure with its protection of privacy.  The balance requires the court to consider seven factors including "the potential for harm in any subsequent nonconsensual disclosure" before deciding whether or not to release a record.

In sum, Sarlo's bill would do nothing to foster transparency and would not protect personal privacy any more than it is already protected by current law. Rather, S788 would simply keep the public in the dark about that which is recorded on police videos and 911 calls.