Thursday, June 30, 2016

Appellate Division, in a two to one vote, affirms disclosure of police dash-cam video.

In a June 30, 2016 decision, a three judge panel of the New Jersey Superior Court, Appellate Division, voted 2-1 to affirm a lower court's holding that a video of a police canine's alleged attack on a female motorist captured by a Barnegat patrol car's dashboard camera is disclosable under the Open Public Records Act (OPRA).

The two-judge majority, consisting of Jose L. Fuentes and John C. Kennedy, found that the recording was not a "Criminal Investigatory Record" because the Ocean County Prosecutor's Office (OCPO), the defendant in the case, could not prove both elements of that exemption: a) that the recording was "not required by law to be made" and b) that it "pertain[ed] to any criminal investigation."  Fuentes and Kennedy agreed with the trial judge, Ocean County Superior Court Assignment Judge Vincent Grasso, that a general order issued by the Barnegat Police Chief requiring the dash-cam recordings to be made qualified as "law" within the meaning of the exemption.  Since the recording was required by law to be made, the two-judge majority held that OPRA's Criminal Investigatory Record exemption did not apply.  The majority also rejected the OCPO's reliance on the Investigation in Progress exemption as well as seven other arguments made.

In his dissent, Judge Robert J. Gilson wrote that the the Barnegat Police Chief's general order does not have the stature of a "law" within the meaning of OPRA's Criminal Investigatory Record exception.  He also found sufficient proof in the record that the recording pertained to a criminal investigation.

The majority's ruling regarding the scope of the Criminal Investigatory Record exception contrasts with that made by another Appellate Division panel in North Jersey Media Group, Inc. v. Township of Lyndhurst.  Under court rules, Gilson's dissent gives the OCPO an automatic right to appeal to the New Jersey Supreme Court. The high court, which has also agreed to hear an appeal of Lyndhurst case, will likely settle the question in the next several months.  (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.)

Saturday, June 18, 2016

Borough has three official newspapers. It seems that only one was notified of a special Borough Council meeting and that notification was late.

Update: July 15, 2016

In a July 14, 2016 letter, Borough Attorney Frederick C. Raffetto said that the Borough will re-vote the formal action taken at the March 23, 2016 meeting at the July 20, 2016 meeting.


Following is Libertarians for Transparent Government's letter to the Mayor and Borough Council.

Dear Mayor and Council:

As our name implies, Libertarians for Transparent Government is a non-profit corporation dedicated to improving transparency in New Jersey government.  The Jamesburg Borough Council's compliance with the Open Public Meetings Act came to our attention after we read the following on the sixth page of the Council's April 20, 2016 public meeting minutes
Tom VandeSande — 2 Fernwood Lane — Mr. VanDeSande requested a second public hearing since we had it on our agenda. His concern was with a notice that was placed in the newspaper on March 25, 2016 advertising a special meeting that was held on March 23, 2016. Administrator Jawidzik explained that it was not an advertisement, but only a notice that the newspaper didn't even have to publish.
Based on this, we made an Open Public Records Act (OPRA) request and received a response from Acting Clerk Sue Boulogne.  Both the request and response are on-line here.

Boulogne's response strongly suggests that the public was not properly notified of the Borough Council's March 23, 2016 special meeting.

N.J.S.A. 10:4-8(d) states:
“Adequate notice” means written advance notice of at least 48 hours, giving the time, date, location and, to the extent known, the agenda of any regular, special or rescheduled meeting, which notice shall accurately state whether formal action may or may not be taken and which shall be (1) prominently posted in at least one public place reserved for such or similar announcements, (2) mailed, telephoned, telegrammed, or hand delivered to at least two newspapers which newspapers shall be designated by the public body to receive such notices because they have the greatest likelihood of informing the public within the area of jurisdiction of the public body of such meetings, one of which shall be the official newspaper, where any such has been designated by the public body or if the public body has failed to so designate, where any has been designated by the governing body of the political subdivision whose geographic boundaries are coextensive with that of the public body . . .
Actual newspaper publication is not required.  The meeting notice must be sent early enough so that the newspaper, if it chooses to, could publish it at least 48 hours in advance of the meeting.  See, Worts v. Upper Township, 176 N.J.Super. 78 (Ch.1980). 

Resolution 026-01-06-16, as reflected in the January 6, 2016 Borough Council meeting minutes, states:
The Home News Tribune, Star Ledger and the Cranbury Press are hereby designated for the year 2016 as the official newspapers for the Borough of Jamesburg in the County of Middlesex for the publication of all legal notices and advertisements of the Borough and all its Boards, Bodies, Committees, Offices and Agencies, as required by N.J.S.A. 40:53-1, and the statutes in such case made and provided.
From all this, one would expect that Acting Clerk Boulogne would have sent timely notice of the March 23, 2016 to all three of the Borough's official newspapers.  Yet, the absence of e-mails to the Home News and Star Ledger in Acting Clerk Boulogne's response to our OPRA request suggests that those two newspapers were not notified at all.  And, it appears that the remaining newspaper--the Cranbury Press--received it notification too late.

Ms. Boulogne, in her response to our request, disclosed only one e-mail being sent on March 17, 2016 to  That e-mail address is for the Packet Media Group which consists of five newspapers, one of which "The Cranbury Press" which, according to the newspaper's website, publishes on Fridays

So, if the Borough sent an e-mail on Thursday afternoon to a paper that publishes on Friday, we seriously doubt that the e-mail would have been in time to meet the Press's publication deadline for the March 17th edition.  Having missed that deadline, the first time that the notice could have been published was on March 25, 2016, which is consistent with Mr. VanDeSande's statement.

In sum, it appears that the public was not properly notified of the Borough Council's March 23, 2016 special meeting.  Of the three official newspapers designated by the Council, only one was notified and that notification was late.

Would you be good enough to discuss this issue at your July 20, 2016 meeting?  We would greatly appreciate learning your thoughts on this matter.

Thursday, June 9, 2016

OPRA lawsuit seeks nature of conduct underlying harassment complaints and terms of separation deal that Township made with resigned mayor.

On April 25, 2016, I blogged about a South Jersey mayor's abrupt resignation which he originally attributed to being "too busy in life" but later appeared to have been motivated by harassment complaints filed by four Township employees.  This week, a new Open Public Records Act (OPRA) lawsuit has been filed that challenges the denial of records related to the harassment matters and the Township's manner of dealing with them.

The lawsuit, which was filed on June 6, 2016, seeks records revealing the nature of the conduct underlying the four employee harassment complaints apparently directed toward former Commercial Township (Cumberland County) Mayor Judson Moore, Jr as well a "Signed and Sealed Memorandum of Understanding" that sets forth the terms of conditions relating to Moore's March 2016 resignation.  The lawsuit specifically asks that the names of the employees who were allegedly harassed and identifying information regarding them remain confidential.  The lawsuit chronicles Moore's history of public service and notes that he had previously separated from Bridgeton, Somers Point and Fairfield under unusual circumstances.

The lawsuit, which is captioned Libertarians For Transparent Government v. Commercial Township, et al, Docket No. CUM-L-402-16, will be heard by a Cumberland County Superior Court  Assignment Judge Georgia Curio in Bridgeton on September 1, 2016.  The Township's opposition brief is on-line here and Plaintiff's reply brief is on-line here.  Plaintiff is being represented by CJ Griffin of Hackensack and the Defendants are being represented by Thomas E. Seeley of Bridgeton.

Wednesday, June 8, 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.

The Innisfree Foundation v. Cherry Hill Board of Education, et al.
Camden County, Docket No. CAM-L-3902-15
Hon. Deborah Silverman Katz, A.J.S.C.
February 9, 2016
Click here for the court's decision.

Summary:  School board violated OPRA by totally suppressing settlements of special education lawsuits.  Rather than complete suppression, the school board was under a duty to redact students' personal identifying information from those settlements. School board to pay plaintiff's attorney fees and costs.

Tuesday, June 7, 2016

William Paterson University sued for prompt access to informal settlement records.

On June 30, 2016, Passaic County Judge Thomas F. Brogan will hear an Open Public Records Act (OPRA) lawsuit that challenges William Paterson University's denial of records that would reveal the amount of a settlement that resolved a civil case against the University. 

At issue is the settlement of William J. Brennan v. William Paterson College, Federal Case No. 2:11-cv-06101 in which Brennan sued the University for refusing to air his programming on two local cable television channels. On March 15, 2016, the federal court issued an order dismissing Brennan's lawsuit because it "has been settled" and on March 31, 2016, Libertarians for Transparent Government, a NJ Nonprofit Corporation (LFTG) filed an OPRA request for both the formal settlement agreement as well as informal settlement communications between the parties if a formal settlement agreement had yet to be executed.  William Paterson contended that since a formal settlement agreement signed by all parties did not yet exist, it was under no legal duty to provide informal settlement correspondence that revealed the amount and terms of settlement.

LFTG's position, as articulated in the lawsuit and brief filed by Richard M. Gutman of Montclair, is, in essence, that while litigation correspondence between a government entity and its insurers and attorneys is privileged, such correspondence loses its privilege when it is shared with the other parties to the lawsuit.  To shield from public view correspondence that all parties to the lawsuit have received keeps no one in the dark except the public--exactly those that OPRA seeks to keep informed.