Monday, April 18, 2016

Significant OPRA loss in Appellate Division: Citizens are denied the benefits of data technology that government agencies routinely enjoy.

Update: Decision reversed by the Supreme Court.
On April 18, 2016, the Appellate Division issued a published (thus precedential) ruling in the case of Paff v. Galloway Township, et al holding that a public agency is not obligated under OPRA to create a list showing the sender, recipient, date and subject lines of e-mails sent by a particular public official during a specific period of time.  This decision reverses Atlantic County Judge Nelson C. Johnson's June 10, 2014 decision that held to the contrary.

While the e-mails themselves (subject to necessary redactions) are public records, the three-judge panel held that public bodies are not required to create lists of e-mails because that would require them to create a new record, even if the effort in doing so is minimal.  The court acknowledged that "it would only take a few minutes to compile the list."

The court ruled:
Until [the Legislature amends OPRA], our holding — that 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 — should provide a clear demarcation line in this case, as well as future cases.
This is a far-reaching holding because it allows government agencies--many of which keep their most useful data electronically--to query their data to create custom reports that are useful to the agencies while relegating the public to get only the reports that the government has already seen fit to prepare.  As aptly stated by the Electronic Frontier Foundation, who appeared as an amicus curiae in the case,
Members of the public - who, lest we forget, ultimately pay for this technology - should be granted access to the same tools that public agencies use every day - specifically the ability to request a search of its electronic records for specific terms (or, here, the preparation an e-mail log). Especially in this information age, any other result would effectively eviscerate the public's rights.

Ocean judge weighs in on the right of non-residents to use OPRA.

Update: On May 16, 2018, the Superior Court, Appellate Division ruled, in a published and thus precedential opinion, that non-residents of New Jersey have the same rights under the Open Public Records Act (OPRA) as New Jersey residents.  The opinion is on-line here.
Ocean County Superior Court Judge Mark A. Troncone is the most recent judge to rule on the issue of whether a non-resident of New Jersey has the right to request records under the Open Public Records Act (OPRA).  In his April 14, 2016, opinion and order in Scheeler v. Ocean County Prosecutor's Office, Docket No. OCN-L-395-15, Judge Troncone found that OPRA is "clear and unambiguous" and wrote that if the Legislature intended to limit OPRA rights to New Jersey citizens, it could have used the word "citizen" instead of "person" throughout the statute.  Troncone wrote:
It is clear that taken to its logical conclusion, the position advanced by [the prosecutor's office] would leave many parties who have a legitimate need to access to public records without recourse. For example, a non-resident property owner and taxpayer could not obtain public records affecting his property; the out-of-state motorist involved in an accident would be unable to access documents from law enforcement officials relating to the incident; and a newspaper, published in a neighboring state but circulated in New Jersey, investigating a claim of alleged official misconduct or corruption would be barred from obtaining public records. Clearly, all of these parties have a real and legitimate interest in obtaining those records but, under [the prosecutor's office's] overly restrictive view of the reach of OPRA would be prevented from doing so. This would clearly frustrate the intent and purpose of the statute.
Troncone's ruling is in accord with an October 2, 2015 decision by Burlington County Assignment Judge Ronald E. Bookbinder in Scheeler v. Atlantic County Municipal Joint Insurance Fund, et al, Docket No. BUR-L-990-15.  But, his decision is contrary to two rulings handed down on February 19, 2016 by Atlantic/Cape May County Judge Nelson C. Johnson:  Scheeler v. City of Cape May, et al, Docket No. CPM-L-444-15 and Lawyers Committee for Civil Rights Under Law v. Atlantic City Board of Education, et al, Docket No. ATL-L-832-15.  All three of these decisions have been appealed.

Friday, April 15, 2016

OPRA lawsuit challenges Passaic City's refusal to disclose 2-year-old unapproved meeting minutes.

On April 14, 2016, Libertarians for Transparent Government, a NJ nonprofit corporation (LFTG), filed a lawsuit in Passaic County Superior Court challenging the City of Passaic's refusal to provide any minutes of City Council nonpublic (closed or executive) meetings held in 2015 as well as the minutes from Planning Board public meetings held as early as February 19, 2014 and Zoning Board public meetings held as early as January 17, 2015.  An amended complaint was filed on April 19, 2016.

The basis for the City's denial of the public meeting minutes is that they "have not been approved."  The basis for denial of the Council's closed meeting minutes is that they must "remain exempt from production under such time as there is no longer a need for confidentiality" and that "the City Council has not adopted a Resolution authorizing the release" of those closed minutes.

In its brief, penned by Hackensack attorney CJ Griffin, the Libertarian organization argues that minutes of closed meetings must be promptly produced in redacted form and that unapproved public meeting minutes can simply be stamped "draft" and publicly released.

Assignment Judge Thomas F. Brogan had scheduled a hearing on this matter for June 21, 2016 at 2 p.m.but the hearing was cancelled because the parties settled the case.  The City agreed to produce all the minutes that were requested and to pay LFTG $5,000 in attorney fees.

New OPRA lawsuit takes aim at GRC's wrongheaded Parave-Fogg decision.


Mercer County Superior Court Judge Mary C. Jacobson ruled today that the Government Records Council's (GRC) unapproved meeting minutes are exempt from disclosure because they are pre-decisional and deliberative. 

The plaintiff in the case, Libertarians for Transparent Government, a NJ Nonprofit Corporation and its attorney, CJ Griffin of Hackensack, filed a Notice of Appeal on August 24, 2016.


In 2006, the Government Records Council (GRC) ruled--wrongly in my opinion--that a public body's unapproved meeting minutes were exempt from disclosure because they were "advisory, consultative and deliberative."  The GRC based its decision on former Executive Director Catherine Starghill's August 3, 2006 Findings and Recommendations in a case known as Parave-Fogg v. Lower Alloways Creek Twp., GRC Complaint No. 2006-51.  In her Findings, Starghill wrote:
Thus, in accordance with the foregoing case law, all draft documents, including the draft minutes of a meeting held by a public body, are entitled to the protection of the deliberative process privilege. Draft minutes are pre-decisional. In addition, they reflect the deliberative process in that they are prepared as part of the public body’s decision making concerning the specific language and information that should be contained in the minutes to be adopted by that public body, pursuant to its obligation, under the Open Public Meetings Act, to “keep reasonably comprehensible minutes.” N.J.S.A. 10:4-14.  This conclusion is a departure from prior GRC decisions and is based on the legal advice received from the Office of the Attorney General.
Since this decision, public bodies across New Jersey, some of which are months if not years behind in approving their meeting minutes, have used the Parave-Fogg decision to justify denying the public access to draft versions of those minutes.

On April 15, 2016, Libertarians for Transparent Government, a NJ nonprofit corporation, filed a lawsuit in Mercer County Superior Court that directly challenges Parave-Fogg's holding.  The defendant in the newly filed lawsuit is the GRC itself.

On April 4, 2015, the Libertarian advocacy organization submitted an Open Public Records Act (OPRA) request to the GRC seeking the minutes of the GRC's February 23, 2016 public meeting.  Since the GRC's March 29, 2016 meeting was cancelled for want of a quorum, the February meeting minutes were not approved at the time of the organization's April 4, 2016 request.  According, GRC records custodian Frank Caruso, relying on Parave-Fogg, denied access because of the "advisory, consultative and deliberative" exemption.

In its brief, penned by Hackensack attorney CJ Griffin, the Libertarian organization argued that Parave-Fogg was "simply wrong" because
The deliberative process privilege does not protect unapproved meeting minutes because there is nothing "deliberative" about meeting minutes—they are secretarial in nature and simply capture what occurred during a public meeting. While a "draft" document may be exempt in some circumstances, a draft of a non-deliberative document is not exempt.
Nothing about unapproved meeting minutes reveals the policy deliberations of the GRC, nor would release of the minutes chill frank discussion of government policies in the future. Simply put, the deliberative process privilege is not intended to protect meeting minutes. When OPRA's deliberative process privilege is narrowly construed, as the Legislature directed, it is clear that meeting minutes are not exempt from access simply because they have not been formally "approved."
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Thursday, April 7, 2016

Kearny's 2-page limit on faxed and e-mailed record responses challenged in OPRA action.

Update 02/02/17:  In its January 31, 2017 Order, the Government Records Council ruled that the Town of Kearny (Hudson County) violated the Open Public Records Act (OPRA) by a) failing to substantively respond to an OPRA request within seven business days, b) failing to individually respond in writing to each record requested, c) failing to honor the requestor's wish to have the responsive records e-mailed rather than mailed and d) charging the requestor $5.56 for copying and mailing records that should have been provided via e-mail at no cost.

On April 1, 2016, Libertarians for Transparent Government, a New Jersey non-profit corporation filed a Denial of Access complaint with the Government Records Council (GRC) against the Town of Kearny (Hudson County).  At issue is the Town's policy of providing a requestor electronic copies of records only if they consist of two or fewer pages.

The requestor sought the minutes of the Town Council's meetings held in April and October 2015 and requested to receive the minutes as an e-mail attachment.  Kearny, apparently relying on its policy of only e-mailing records that consist of two or less pages, advised the non-profit that it needed to send the Town a check for $5.56 so that paper copies of the records could be mailed.

Hackensack attorney CJ Griffin, who is representing the non-profit in the matter, argued that the Open Public Record Act (OPRA) expressly holds that "[a]ccess to electronic records and non-printed materials shall be provided free of charge, but the public agency may charge for the actual costs of any needed supplies such as computer discs." N.J.S.A. 47:1A-5(b).  She also argued that Kearny's response, received fourteen business days after the request was received, violated OPRA and should be considered a "deemed denial."

Wednesday, April 6, 2016

NJ Legislative Committee gives meager advance notice of a significant hearing.

At 5:06 p.m. today (April 6, 2016), I received an e-mail notification (I'm on the list of recipients) advising me that a new bill, A-3614, will be considered at the Assembly Judiciary Committee's April 7, 2016, 10 a.m. meeting in Trenton. Here is how the newly announced bill is described in the notice:

Establishes “Atlantic City Plan for Implementing Economic Recovery Act”; exempts casino gaming property from local taxation and establishes payment in lieu of taxation; creates Atlantic City Planning Committee. 

This appears to be a matter of significant public importance.  Yet, the media and public have been given a little less than seventeen hours advance notice of this bill's hearing.  And, interested members of the public and media who wish to read the bill prior to the hearing cannot because it is "pending intro and referral."  See the screen-shot of what I encountered when I tried a few minutes ago to download a copy of the bill.