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:


Thursday, July 14, 2016

Lawyer to blogger: "Immediately cease and desist in your publication" of my client's confidential settlement agreement with a public agency.

On July 12, 2016, I published "Sparta school board confidentially paid $50,000 to settle former custodian's wrongful termination lawsuit."  I distributed a link to the article to area media (which resulted in Eric Obernauer of the New Jersey Herald publishing "Sparta school board settles suit with former custodian" on July 14, 2016) as well as to the lawsuit plaintiff's attorney.
Today, I received the following e-mail from the attorney who represented the former school custodian in the wrongful termination lawsuit:
Mr. Paff:

You have published what you know to be a confidential document without the authorization of the parties. I do not know how you obtained the agreement. You must immediately cease and desist in your publication of the agreement.

Very truly yours,

Mark J. Brancato
MCHUGH & BRANCATO ATTORNEYS LLP
104 Elcock Avenue
Boonton, NJ 07005
Even though I have published over four hundred articles regarding settlements--many of them marked "confidential"--I have never received a "cease and desist" letter (and its implied threat of a civil action against me if I refuse) from anyone.

It has always been my understanding that the "confidentiality agreements" placed in settlement agreements bind only the parties to that agreement, not to media or members of the public who obtain those "confidential" settlement agreements through Open Public Records Act (OPRA) requests.  Indeed, the confidentiality clause in Acevedo's settlement agreement, set forth in full below, expressly states that it only applies to "Releasor" (i.e. Acevedo).
CONFIDENTIALITY. The Parties agree that the terms and conditions of this settlement and the claims upon which it was based shall remain confidential to the extent permitted by law. Releasor agrees that he will not publish, in any manner, or attempt to publish the terms of the settlement. The Parties agree that any request for information concerning the terms and conditions of this settlement and the claims upon which it is based will be governed by the Open Public Records Act, N.J.S.A. 47:1A-1, et seq. Releasor agrees not to discuss this case or settlement with the media, or third parties, other than immediate and trusted family members, medical providers or accountants and Releasor agrees to instruct her family members, accountants and attorneys of this confidentiality requirement.
Beyond the fact that I am not bound by the "confidentiality" provision within the agreement, nothing in my article could be construed to defame Acevedo (or anyone else), cast him a false light or violate his privacy.  And, even if I republished some false statement contained the lawsuit, such republication would almost certainly be privileged under the fair report or fair comment privileges.  In sum, I find no tenable legal basis for Mr. Brancato's demand.

Finally, as a matter of public policy, plaintiffs who recover money from public agencies cannot be allowed to keep the fact that those payments were made or their amounts from the taxpayers who funded them. If it were otherwise, taxpayers would be unable to judge whether elected officials' settlement decisions were reasonable or foolish or possibly corrupt.

Mr. Brancato's "cease and desist" demand is offensive and anathema to those who value governmental transparency.  Perhaps Mr. Brancato should "cease and desist" from attempting to suppress reports about public affairs.

Saturday, July 2, 2016

Judge: State must release names of cops who shot juvenile in Trenton.

In a June 30, 2016 written decision, Mercer County Assignment Judge Mary C. Jacobson held that the Attorney General's office and other law enforcement agencies must release the names of officers from the State Police and Mercer Sheriff's Department who fired fifteen shots at Radazz Hearns, then 14, on August 7, 2015.  In her 79-page ruling, Jacobson found that the State's "generalized concerns" for the safety of law enforcement officers, does not trump the public's rights under the Open Public Records Act (OPRA).  She did allow, however, that had the State "shown that threats to unnamed police officers had been made . . . the court may very well have" ordered that the officers' names be withheld.

In the same decision, Judge Jacobson also ruled in two cases filed by Richard Rivera.  One sought the names of Troopers involved in a fatal police shooting of Daniel Wolfe and the other sought the names of Troopers who used pepper spray, tear gas and loud noise emitters to disperse a crowd during radio station Hot 97's June 7, 2015 Summer Jam concert at Metlife Stadium.  River also sought Use of Force Reports that were generated as a result of those incidents.  Jacobson ruled that Rivera was entitled to the officers' identities but "reluctantly" ruled that the Use of Force Reports were exempt as criminal investigatory records.

Both Paff and River were considered "prevailing parties" and entitled to recover their court costs and attorney fees from the public agency defendants. Judge Jacobson gave the State until July 20, 2016 to release the Troopers' names so that it had time to consider whether or not to file an appeal.

I was ably represented in the case by CJ Griffin of Hackensack.