Thursday, March 31, 2016

Union County pays $10,000 to settle OPRA requestor's fee claim.

On February 23, 2016, the County of Union agreed to pay $10,000 to cover the lawyers' fees and costs of an Open Public Records Act (OPRA) requestor who partially succeeded in her lawsuit to compel the county to disclose public records.

In her October 1, 2015 decision in the case of Tina Renna v. County of Union, et al, Docket No. UNN-L-3253-14, Superior Court Judge Camille M. Kenny found that the County was justified in suppressing certain "Annexes" which described how emergency services and public health officials would respond in case of an emergency.  Judge Kenny found the testimony of William Kane, Deputy Director of Emergency Management, to be "compelling" and that release of the Annexes, even partially, "could cause a serious security risk."

Judge Kenny also found, however, that the County's denial was too broad and kept Renna from receiving a large number of documents that were "undeniably public."  These included "Resolutions of the Freeholders, mutual aid agreements between or among the County and other entities, and even brochures designed for public dissemination."  Under Judge Kenny's instructions, the County agreed to release many of the previously withheld documents, including some that were available on the County's websites.

Renna was represented in the suit by Walter M. Luers of Clinton.

Wednesday, March 30, 2016

Judge's order that suppressed all information about investigation into Cape May Sheriff has been appealed.

Sheriff Gary G. Schaffer
Update 05/02/16: The transcript of the hearing held by Judge Jacobson on December 8, 2015 is now on-line.

On March 2, 2016, I reported that Judge Mary C. Jacobson dismissed my Open Public Records Act (OPRA) and common law right of access lawsuit that sought information concerning a State Police investigation into Cape May County Sheriff Gary G. Schaffer.

My attorney, CJ Griffin of Hackensack, has appealed Judge Jacobson's order on two grounds:

1. The Trial Court erred in denying Plaintiff's Order to Show Cause demanding the records either be produced in their entirety or reviewed in camera and produced in redacted form.

2. The public interest in transparency far outweighs any need for confidentiality in the public being made aware of what the investigation into the alleged misconduct of Schaffer was based on, the results of the investigation, and whether government agencies conducted a reasonable investigation.

Future developments on this appeal will be reported on this blog.

Sunday, March 20, 2016

Mercer Attorney Ethics Committee's docketing letter likely to suppress grievants' free speech rights.

Update: In his March 24, 2016 letter, Director Centinaro agreed that District VII's letter was improper.

Following is my letter to Charles Centinaro, Director of the New Jersey Office of Attorney Ethics, concerning a letter I received from a District Ethics Committee that is likely to cause ethics grievants to think that they are not allowed to publicly discuss their grievances.
March 20, 2016

Dear Director Centinaro:

I would like to bring to your attention a docketing letter I recently received from the District VII Ethics Committee in response to my grievance against a lawyer who practices in Mercer County.  I have placed the letter, which relates to Docket No. VII-16-010E, on-line here.

The letter, which contains language that the District VII Committee secretary uses in all such letters, states in relevant part:
All parties are advised that matters before the Committee are confidential and may not be disclosed to anyone outside the Committee.
But this is too broad of a statement and is likely to cause grievants to erroneously think that they are not allowed to tell anyone that they have filed an ethics grievance.

In R.M. v. Supreme Court of New Jersey, 185 N.J. 208 (2005), the Supreme Court held that “a grievant may discuss publicly the fact that he or she filed a grievance, the content of that grievance, and the result of the process.”  Thus, it appears that the District VII Secretary, more than ten years after R.M. was decided, is still applying the same confidentiality standard that the Supreme Court ruled to be an impermissible burden on an ethics grievant's right to free speech.

Would you please direct District VII, as well as any other ethics committees who may be similarly misinforming grievants, to bring their docketing letters into conformity with current law?

Very truly yours,

John Paff

cc. Peter F. Kelly, Chair and Andrea Dobin, Vice-Chair of the District VII Ethics Committee.

Tuesday, March 15, 2016

Appellate Court: Volunteer Fire Company is subject to OPRA.

Update: In an August 7, 2017 decision, the New Jersey Supreme Court ruled that Millstone Valley Fire Department was an "instrumentality of an instrumentality" and thus not subject to OPRA.

Update: On June 6, 2016, the New Jersey Supreme Court agreed to review whether Millstone Valley Fire Department an “instrumentality” of the Franklin Fire District No.1 and thus a “public agency” subject to the Open Public Records Act (OPRA)

In a March 15, 2016, unpublished opinion, a three-judge panel of the Appellate Division of the New Jersey Superior Court agreed that a volunteer fire company under the jurisdiction of a fire district is a government agency and thus subject to the Open Public Records Act (OPRA).  The Appellate Division, however, declined to decide whether or not records related to the fire company's social functions--as distinguished from its government functions--should be excluded from OPRA's scope.

The decision affirmed an April 29, 2014, ruling by the Government Records Council in Robert A. Verry v. Franklin Fire District No. 1 (Somerset), GRC Case No. 2013-196 that Millstone Valley Fire Department, which is located in Franklin Township (Somerset County) "is a member of the Franklin Fire District No. 1 per N.J.S.A. 40A:14-70.1 and thus serves a governmental function under the supervision and control of the Franklin Fire District No. 1 [and] it is a public agency for purposes of OPRA."

Sunday, March 13, 2016

Appeal taken from GRC's ruling that settlement agreement was not disclosable even though settlement check had been written.

On March 10, 2016, a records requestor appealed a New Jersey Government Records Council ruling that his November 20, 2014 Open Public Records Act (OPRA) request for a lawsuit settlement agreement was properly denied even though the municipal governing body had already approved the settlement and cut a check.

At issue in Harry Scheeler v. Galloway Township, GRC Complaint No. 2015-1 and 2015-22 is Scheeler's request for the settlement agreement that resolved former Galloway Township (Atlantic County) Manager Steve Bonanni's whistleblower and defamation lawsuit against the Township and Mayor Don Purdy.

The appellate filings show that even though the Township Council passed a resolution approving the settlement at its November 12, 2014 meeting and issued Bonanni a settlement check on that date, the settlement agreement was still an un-finalized draft because it had not yet been signed by the Mayor. But, Scheeler argued that the agreement only required Bonanni's signature and did not contain a signature block for the Mayor. The GRC also held that a settlement is truly finalized only after a Stipulation of Dismissal is filed in the court.

Scheeler, who represented himself before the GRC, is being represented in the appeal by CJ Griffin of Hackensack.

Thursday, March 3, 2016

Lawsuit argues that 3 year old, unapproved, public meeting minutes are not "deliberative."

Updated August 1, 2017.  Appeal taken from adverse ruling.
Back in 2006, the Government Records Council (GRC) decided a case called Parave-Fogg v. Lower Alloways Creek Township, Case No. 2006-51 which established the unfortunate precedent that public meeting minutes remain exempt as "inter-agency, intra-agency advisory, consultative, or deliberative material" until they are approved by the public body.  Parave-Fogg is routinely used by records custodians across the state to deny access to yet-to-be-approved public meeting minutes.  It is especially onerous in cases where governing bodies delay their approval of meeting minutes for months or even years.

A lawsuit filed last month, John Paff v. Township of Moorestown, Docket No. BUR-L-340-16, argues that the GRC "egregiously erred" in Parave-Fogg because public meeting minutes are not "deliberative" because they do not contain pre-decisional opinions, recommendations or advice about Township operations.  Rather, meeting minutes are simply a summary of public discussion which cannot logically be privileged because everything contained in meeting minutes was already publicly discussed.

At issue in the suit are the minutes of the October 19, 2012 public meeting of the Moorestown Ethical Standards Board.  Since the Board has not met since 2012, it never had an opportunity to approve the minutes of that meeting.  When I requested a copy of the minutes on December 28, 2015, I was told that "there are no meeting minutes that have been approved."

I am being represented in this suit by CJ Griffin of Hackensack. I hope that a positive decision in this lawsuit will undermine Parave-Fogg and eventually cause the GRC to abandon it.

Wednesday, March 2, 2016

Public not allowed to know anything about State Police investigation into Cape May Sheriff.

Sheriff Gary G. Schaffer
On November 14, 2015, I blogged about my common law right of access lawsuit against the New Jersey State Police that challenged that agency's decision to suppress all information concerning a State Police investigation into Cape May County Sheriff Gary G. Schaffer.

In her February 5, 2016 order, Mercer County Assignment Judge Mary C. Jacobson dismissed my complaint.

At oral argument, Judge Jacobson focused on two areas in reaching her conclusion: First, she considered the sensitive nature of the records (the Judge stated that these types of records were “cloaked in sensitivity”).  Second, she considered the potentially significant effect on the people who gave information over the course of the investigation into the allegations.

Ultimately, the Judge stated that the public's interest in disclosure was outweighed by the need to keep the records confidential because of the effect on victims and any witnesses/individuals who gave information over the course of the investigation.

I was represented in the matter by CJ Griffin of Hackensack.

Public not allowed to know the name of the Trooper who sought sex from target of arrest warrant.

On September 13, 2015, I blogged about my Open Public Records Act (OPRA) and common law right of access lawsuit against the New Jersey State Police that challenged that agency's decision to suppress the identity of a State Trooper who resigned or was fired for offering to not execute an arrest warrant in exchange for the warrant's target having sex with him.

In her March 1, 2016 order, Mercer County Assignment Judge Mary C. Jacobson dismissed my complaint.  Apparently, Judge Jacobson was convinced by Major Mark Wondrack's December 17, 2015 Certification in which he concluded that "that producing the name, plea agreement, and resignation letter of 'Trooper Doe' requested by Mr. Paff - or similar internal investigative records - would be contrary to longstanding law enforcement practices and policy and would jeopardize the safety of numerous individuals and the success of current and future internal investigations."

I was represented in the matter by Walter M. Luers of Clinton.

Supreme Court Committee: No anonymous OPRA lawsuits.

On August 9, 2015, I posted a blog article regarding my October 2, 2012 request for an amendment to New Jersey's court rules that would allow anonymous OPRA requestors to proceed in court anonymously if their requests are denied.

In its 2016 report, the Civil Practice Committee rejected my request because on September 17, 2015 the Appellate Division ruled in A.A. v. Gramiccioni, 442 N.J. Super. 276 (App. Div. 2015) that, absent compelling circumstance, anonymous OPRA lawsuits are not permitted.

Tuesday, March 1, 2016

Bayonne admits OPRA violation and pays $5K in attorney fees.

As reported in my January 27, 2015 article, I sued the City of Bayonne because it would not, prior to formal settlement agreements in two police excessive force lawsuits being signed by all parties, provide me with informal documents that revealed the settlement amounts.  My chief complaint was that Bayonne's attorney, William P. Opel, would not tell me whether or not any such informal documents existed.  Rather, Opel hedged by claiming, in effect, that "if those documents existed, I couldn't have them because they would be exempt."

In an honorable move, the City agreed last week to concede that its response to my request was "unclear" and deprived me of being able to "properly assess" the matter.  The City also agreed to pay my lawyer, CJ Griffin of Hackensack, $5,000 in attorney fees for having brought the suit.