Friday, December 22, 2017

Evesham Councilman, wife sue MUA for failing to redact social security number from records disclosed under OPRA.

On December 21, 2017, a member of the Evesham Township (Burlington County) Council and his wife filed a pro-se lawsuit against the Evesham Municipal Utilities Authority (MUA) and the Authority's records custodian for improperly releasing the Councilman's social security number in response to an Open Public Records Act (OPRA) request.

In their lawsuit, Robert and Virginia DiEnna said that in December 2015 MUA records custodian Laura Puszcz released records that contained Robert's social security number in response to to Phillip Warren's OPRA request.  Councilman DiEnna said the MUA had his personal information because he was hired as an MUA employee in 2012.

The DiEnnas claimed that they did not become aware that Robert's social security number had been released until September 26, 2016.  They claimed that the disclosure of the social security number invaded their privacy and caused them emotional distress.

The DiEnnas' lawsuit is only a list of allegations. Nothing has been proven and the burden of proof remains on the DiEnnas.

Unpublished trial court OPRA opinion.

Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals.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 I think that it's important that court opinions, even if they are not precedential, are easily accessible for future use.

Charles R. Cohen v. City of Englewood et al, Docket No. BER-L-7144-17
Hon. Bonnie J. Mizdol, A.J.S.C.
December 21, 2017
Click here for the court's decision.

Summary:  The most intriguing part of Judge Mizdol's opinion is her remarks about time sheets prepared by an engineering firm that was under contract with Englewood.  Even though the City did not have the time sheets in its possession, Mizdol suggested that she would have required the City to retrieve them for the OPRA requestor because those time sheets "should have been on file with, or accessible to city officials because such access allows the governing body to 'perform the oversight function expected . . .'"  The internal quote was taken from the Supreme Court's holding in Verry v. Franklin Fire District No 1, 230 N.J. 285, 303 (2017).  Judge Mizdol didn't require Englewood to produce the time sheets in this instance because the OPRA request was "unartfully drafted" and did not specifically ask for them.

Wednesday, December 6, 2017

Lawsuit seeks to compel Salem County to pay OPRA attorney fee.

On June 27, 2017, the Government Records Council (GRC) ordered Salem County to pay my attorney $2,310 in fees after having previously found on April 25, 2017 that the County violated my rights under the Open Public Records Act (OPRA). The County has thus far ignored several requests to pay the fees necessitating a lawsuit to compel payment of the $2,310 plus additional fees and costs for having to bring the lawsuit.

The original GRC matter was Paff v. County of Salem, GRC Complaint No. 2015-342.  The new court matter is Paff v. Salem County, Docket No. SLM-L-222-17. Superior Court Judge David M. Morgan has issued an order requiring the County to appear in court on Friday, December 22, 2017 at 1:30 p.m. to show cause why it should not be required to pay the overdue fees.

My attorney is Ted M. Rosenberg of Moorestown and Salem County is being represented by County Solicitor Michael M. Mulligan.

Friday, December 1, 2017

3,974 (now 4,750) lines of OAL open case data are now on-line in an Excel file.

Update 02/08/18:  I received a new list today that contains 4,750 lines of data rather than the 3,974 on the previous list.  I believe that something was improperly suppressed on the previous list.
On July 31, 2017, I reported that the Office of Administrative Law (OAL), in response to an Open Public Records Act (OPRA) request, disclosed an Excel file containing docket information on about 350 cases.  As I noted in my article, government agencies, in accordance with the Supreme Court's June 20, 2017 ruling in Paff v. Galloway, are now obliged to extract information from government databases in response to OPRA requests.

After writing my article, the OAL released an expanded list that contains docket information on all of its cases that were active on August 1, 2017.  The list, set forth in an Excel file which I've placed on-line here, contains 3,974 lines of data.  Since some are duplicates, this may represent about 2,000 separate cases.

To my knowledge, apart from the Excel file at the above link, the OAL has provided no method for members of the public to access its case docket.  Accordingly, cases are filed and adjudicated without anyone other than the parties and their lawyers knowing that these cases exist.

Some of the cases are of significant public interest, such as the State Board of Examiners cases.  These cases, represented by the code EDE in Column D, list the names of school teachers and administrators some of whom are contesting the suspension of their certificates. (Note: Column "D" of the table contains a three-character code that identifies the agency where the case originated. A table that lists each the three-character codes and its corresponding agency is on-line here.)  Some of those matters have public hearings scheduled that will take place during the next several weeks.  For example, someone named David C. Raffo is listed to appear before Administrative Law Judge John Scollo in Newark on January 10th and 11th of 2018.  A Google search on Raffo's name shows that the Board of Examiners issued an Order to Show cause to him at its March 3, 2017 meeting to determine "why his certificate(s) should not be revoked based on the level and nature of the conduct."

While the database and Internet searches do not reveal the nature of Raffo's alleged underlying conduct, an interested member of the public or media could submit an OPRA request for the case documents and perhaps glean an understanding of the issues and attend the hearing to observe the proceedings.  While in a perfect system all of public case information would be on-line, this Excel table at least provides members of the public and press with a roadmap that they can follow to obtain that information.

Wednesday, November 29, 2017

An open letter to Monmouth County Assignment Judge Lisa P. Thornton

Even though I ultimately received the records that the plaintiff's attorney sought to have sealed, public access to those records was delayed for about a month.  I advocate not only for access to non-exempt government records but for prompt access to those records.  Accordingly, I have brought my concerns regarding how access to these court records was improperly delayed to both Judge Thornton and the public by way of this open letter.
November 29, 2017

Dear Judge Thornton:

RE: Snyder v. Gramiccioni, Docket No. MON-L-2856-16

Thank you for permitting me to appear before the court telephonically on November 17, 2017 to argue against the plaintiff's motion to seal the court record. I have had a chance to review the documents that your office sent me yesterday and would like to bring to the court's attention a rule violation that I believe worked to impermissibly deprive the public of information about the captioned matter for over fifteen months.

The rule at issue is a July 1, 2010 amendment to R.1:38-11 that added the following paragraph (d):
Documents or other materials not exempt from public access under Rule 1:38 may not be filed under seal absent a prior court order mandating the sealing of such documents, and should not be submitted to the court with the motion, which may be filed on short notice, requesting an order to seal.
The amended rule establishes that a normally non-exempt record, such a civil complaint, may not be filed under seal unless a prior court order that seals the record has already been entered.  Thus, if plaintiff's lawyer, Mr. Cushane, wished for his client's complaint to be sealed, he ought to have first filed a motion that set forth the "good cause" requirements of R.1:38-11.  Then, if the motion was granted, he could have filed his client's complaint under an assurance that it would remain under seal unless and until an order to unseal it was entered.  If the motion to seal was denied, Mr. Cushane and his client could elect either to proceed publicly or abandon the lawsuit, depending on the level of importance they assigned to the client's privacy.

What Mr. Cushane did, however, was file both the amended complaint and the motion to seal simultaneously on August 16, 2016. (Note: The original complaint, filed on August 4, 2016, was correctly rejected by the Court because it impermissibly identified the adult plaintiff by his initials rather than his full name.)  Then, the motion to seal remained pending for more than sixteen months until it was finally adjudicated on November 17, 2017.

Mr. Cushane's motion filing, which violated the rule's admonition (i.e. "[records for which sealing is sought] should not be submitted to the court with the motion"), also had the unfortunate effect of being treated by the Monmouth County Prosecutor's Office (MCPO) as the equivalent of a sealing order.

On October 23, 2017, my non-profit organization submitted an Open Public Records Act (OPRA) request to the MCPO for records that were filed in this case.  Even though no sealing order had yet been entered, Jennifer Lipp, the MCPO's records custodian, denied the OPRA request on the strength of Mr. Cushane's pending motion.  In her October 23, 2017 e-mail, she wrote: "I have a duty to protect people’s privacy interests including medical, mental health, substance addiction, domestic violence, among other privacy interests.  The motion is pending.  Unless Judge Thornton tells the lawyers involved that she is not going to seal the record, I am not going to release them.  Knowing there is a pending motion before the Assignment Judge could also be an ethical violation for me.  Once Judge Thornton rules, I will let you know."

In other words, Ms. Lipp treated the pending motion as a fait accompli even though it had not yet been adjudicated.  Had Mr. Cushane abided by R.1:38-11(d), the sealing motion would have been determined shortly after the August 2016 filing and Ms. Lipp's grant or denial of the OPRA request would have been dictated by the court's decision to grant or deny that motion.

At this point, I seek no remedy because, even though my access to these records was delayed for about a month I have now received them.  I write only to inform the court of the denials and delays that the public faces when R.1:38-11 is disobeyed.  I ask that the court keep my concerns in mind going forward.

Very truly yours,

John Paff

cc. Thomas Cushane and Jennifer Lipp

Court file released. Turns out case was filed by a former Marlboro police sergeant who wants to be declared "psychologically fit."

On November 7, 2017, I wrote an article titled "Who is T.S. and why is he or she suing the Monmouth County Prosecutor and seeking to have the lawsuit sealed by the court?"  After a November 17, 2017 hearing, at which I participated both by filing a certification and letter brief and by arguing telephonically, Monmouth County Assignment Judge Lisa P. Thornton denied the sergeant's motion to seal the file and released most of the court filings to me.  We now know that the suit was filed by a fired Marlboro Township police sergeant who seeks to be declared "psychologically fit to be conditionally rearmed and to conditionally return to full duty" after having reportedly been cleared by two psychologists who examined him after two separate incidents.

The essential facts, as alleged in former Marlboro Sergeant Timothy Snyder's lawsuit, are that Monmouth County Prosecutor Christopher J. Gramiccioni twice disallowed Snyder from possessing a firearm.  The first time was on May 10, 2015 after Snyder's arrest for domestic violence--charges that Snyder claimed did not result in a conviction.  The second time was on October 16, 2015 after Snyder was suspended by Marlboro Police Chief Bruce Hall when an "officer-in-crisis" report was filed after an incident that occurred in Snyder's home.  The object of the lawsuit is to compel Gramiccioni to return Snyder's firearms and accept recommendations, made by separate psychologists who examined Snyder after each incident, that Snyder is fit for duty.  Snyder has a separate, administrative matter pending before the Office of Administrative Law that contests Marlboro's reported decision to fire him effective June 3, 2016.  This is only a summary. The court filings are available for those who want more details.

Snyder originally filed his lawsuit in August 2016 using only his initials, T.S., to identify himself.  Judge Thornton quickly rejected this attempt and required Snyder's lawyer, Thomas A. Cushane of Vineland, to refile the suit using Snyder's full name.  (Unfortunately, Thornton's decision did not cause the court's publicly-accessible, electronic docket to be updated.  The docket, known as the Automated Case Management System (ACMS), identified the plaintiff as only "T.S." until mid-November 2017.)  Also during August 2016, Cushane filed a motion to "seal any and all court records—including the complaint itself--in light of the extremely sensitive nature of the psychological reports and evaluations referenced at length therein as well as Snyder's public standing in the community as a municipal law enforcement officer."

In support of his motion to lock down the entire file, Cushane argued that while the public has a common-law right to inspect court records, the public's confidence in his client's ability to function as a police officer would be undermined if members of the public had "unfettered access" to documents filed in Snyder's lawsuit. The prosecutor's office argued that Cushane's position was "too broad" and that if "the Court were to accept that, then it would have to seal the records in every case where an officer's reputation or ability could be called into question."

Ultimately, Judge Thornton ruled that the court filings be released to the public while Snyder's psychological reports are sealed.

Wednesday, November 15, 2017

Appellate Division: Release that settled lawsuit is disclosable at time settlement terms are agreed to by the parties.

Are lawsuit settlement agreements subject to disclosure when the settlement terms are first hammered out and agreed to by the parties or can agencies suppress settlement information until all the paperwork is signed, sealed and delivered?  This is an important question because weeks or sometimes months elapse between a lawsuit's parties' informal--yet binding--agreement to settle and the signing of a formal agreement by all parties.  During those weeks or months, many public agencies deny access to settlement agreements thus depriving the public of important settlement information.

The case law on this issue has so far has been mixed.  Judges in Essex, Hudson and Passaic Counties have ruled that agencies must disclose settlement agreements as soon as the settlement's essential terms have been agreed to and reduced to writing.  (William Paterson University, however, has appealed the Passaic County judge's ruling and that appeal remains pending.)  But, a judge in Mercer County has reached the opposite conclusion.

Today, an Appellate Division panel has come out on the side of early release.

On November 15, 2017, a two-judge Appellate Division panel issued an unpublished (and thus non-precedential) opinion holding that a release that settled a lawsuit was final and required to be disclosed to an Open Public Records Act (OPRA) requestor when "the terms of the settlement were agreed to between the attorneys for the respective parties" even though "the stipulations of dismissal were not filed and the settlement checks were not delivered until after" the parties' attorneys came to their agreement.  The panel also said that releases and settlement agreements that settle lawsuits are "contracts" which must be made "immediately available" in accordance with N.J.S.A. 47:1A-5(e).

The opinion reversed a Final Agency Decision of the Government Records Council (GRC).

Tuesday, November 14, 2017

Appellate Division: Local Finance Board lacked quorum to decide ethics matter.

In a November 14, 2017 unpublished (and thus non-precedential) opinion, a three-judge panel of the Appellate Division ruled that four members of the eight-member Local Finance Board (LFB) were not statutorily authorized to rule on a Local Government Ethics Law (LGEL) complaint against a Franklin Township (Somerset County) Fire Commissioner.

According to the opinion and a January 13, 2016 LFB decision, the Franklin Township Ethics Board ruled in 2011 that Fire District 1 Commissioner James Wickman violated the LGEL by voting "to settle a sexual harassment lawsuit filed [in 2009] against the Commissioners of Franklin Township Fire District No. 1 in which he was also an individually-named defendant."  The LFB reversed the Franklin Ethics Board's determination and vacated a $250 fine it had levied against Wickman.  The LFB found that "Wickman's limited involvement in the underlying sexual harassment litigation did not rise to the level of a direct or indirect financial or personal involvement that might reasonably be expected to impair his objectivity or independence of judgment [and] that Wickman did not use or attempt to use his official position to secure an unwarranted privilege or advantage for himself."

Jeff Carter, a Franklin Township resident and brother of the woman who filed the underlying sexual harassment lawsuit, appealed the LFB's decision to the Appellate Division.  The Appellate Division found that N.J.S.A. 40A:9-22.9 required that LFB decisions "shall be made by no less than two-thirds of all members of the [B]oard."  Accordingly, the panel ruled, "at least six of the Board's eight statutorily-commanded members had to participate in the decision it rendered in this case."  Since only four members were present to vote, the Appellate Division found that "the decision is void," vacated it and remanded the matter back to the LFB for further proceedings.

Saturday, November 11, 2017

Appellate Division: Courts are empowered to penalize government officials for knowing and willful OPRA violations.

There has been some confusion over the power of Superior Court judges to assess monetary penalties against records custodians and other government officials who knowingly, willfully and unreasonably violate the Open Public Records Act (OPRA)

The confusion stems from the Appellate Division's August 5, 2008, unpublished opinion in Hirsch v. City of Hoboken.  In that case, a three-judge panel held that the Superior Court lacks the authority to issue civil penalties against government officials because the court's "role under OPRA is not as broad as the role of the Government Records Council (GRC)."

On August 3, 2017, the Appellate Division issued a published opinion in North Jersey Media Group, Inc. v. Office of the Governor, 451 N.J. Super. 282 that rejected this limitation.  This precedential opinion states that both the Superior Court and the GRC are empowered to assess civil penalties against records custodians in appropriate cases.

Under N.J.S.A. 47:1A-11, "[a] public official, officer, employee or custodian who knowingly and willfully violates [OPRA} and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty of $1,000 for an initial violation, $2,500 for a second violation that occurs within 10 years of an initial violation, and $5,000 for a third violation that occurs within 10 years of an initial violation."

Friday, November 10, 2017

Former Orange City Clerk ordered to pay $1,000 penalty for knowingly and willfully violating OPRA.

Update: In an earlier version of this post, I erroneously indicated that the former Clerk who was penalized served the City of East Orange rather than the City of Orange.  I regret this error.
In an October 31, 2017 order, the Government Records Council (GRC) ordered former Orange City (Essex County) Clerk Dwight Mitchell to "pay a civil penalty in the amount of one thousand dollars" for knowingly, willfully and unreasonably violating a woman's rights under the Open Public Records Act (OPRA). 

The penalty arose out of records denial complaint that Katalin Gordon filed with the GRC against the City.  In June 2013, Gordon requested disability insurance payments received by Clerk Mitchell between June 1, 2010 and June 25, 2013 and all sick days accumulated by him during the same period.  In a September 30, 2014 order, the GRC determined that even though the City's denial of Gordon's request was improper, it "did not rise to the level of a knowing and willful violation of OPRA" even though Mitchell had "failed to respond to the Complainant’s OPRA request in a timely manner, failed to provide a specific legal basis for denying the requested records, and failed to prove that the denial of access to the requested records was authorized by law."

Gordon appealed and a two-judge Appellate Division panel, in a June 23, 2017 unpublished opinion, found that there was "insufficient evidence in the record to support [the GRC's] finding that the City's denial of Gordon's OPRA request was not willful and deliberate."  The panel found that the City wrongly denied Gordon's request by claiming there was on-going and pending litigation with Mitchell.  When confronted with the fact that no such litigation existed, the court said that the City "unconvincingly" explained that it mistakenly characterized an investigation into Mitchell as litigation.  The court found that even if there was an investigation, the City offered nothing to prove that release of the records Gordon sought would be "inimical to the public interest."  After finding that the payroll records Gordon sought were clearly disclosable and after noting that the City made "meritless claims" that Gordon's OPRA request was "too broad" and that the information she sought was not maintained electronically, the two-judge panel reversed the GRC's September 30, 2014 order and remanded the matter to the GRC "for further proceedings regarding the imposition of appropriate penalties in accordance with OPRA."  The GRC's October 31, 2017 Order arose out of that remand.

Mitchell was given five days to pay the fine.

Tuesday, November 7, 2017

Who is T.S. and why is he or she suing the Monmouth County Prosecutor and seeking to have the lawsuit sealed by the court?

Monmouth County Prosecutor
Christopher J. Gramiccioni
Update 11/16/17: I spoke with Judge Thornton's law clerk today and learned that the hearing on sealing the record will be held on November 17, 2017 at 2:30 p.m. instead of 1:30 p.m. and that if a settlement conference being held in the judge's chambers at 1:30 p.m. results in settlement, the sealing motion will become moot and the records in the court's file that are not otherwise exempt will become open to the public.  I also learned that the plaintiff's name is Timothy Snyder and that he is an adult. According to the law clerk, Snyder initially filed using his initials T.S. but Judge Thornton disallowed the pleading and required Snyder to refile an amended pleading identifying him by his full name.  Unfortunately, the person who updates the court's on-line docket did not change the plaintiff's name in the public, on-line record.  That has been corrected and Timothy Snyder's full name now appears on the on-line docket.
Monmouth County Assignment Judge Lisa P. Thornton has permitted me to participate in a November 17, 2017, 1:30 p.m. hearing that will determine whether pleadings filed by an unidentified person in a civil case against Monmouth County Prosecutor Christopher J. Gramiccioni will be released to the public or sealed away from public view.

The lawsuit, which bears Docket No. MON-L-2856-16, was filed on August 4, 2016 by a person identified only by the initials "T.S."  I recently stumbled upon the case while randomly searching the New Jersey Superior Court's on-line docket (a horribly outdated and difficult to use system--click here for my article on how to best navigate it).  Intrigued, I had my non-profit submit an Open Public Records Act (OPRA) request for T.S.'s amended civil complaint but was informed by Jennifer Lipp, the Monmouth County Prosecutor's Office's records custodian, that because of her "duty to protect people’s privacy interests including medical, mental health, substance addiction, domestic violence, among other privacy interests," she would not release even a redacted copy of the lawsuit even though the Motion to Seal had not yet been decided. "Knowing there is a pending motion before the Assignment Judge could also be an ethical violation for me," she wrote in her October 31, 2017 e-mail.

I then submitted a records request under New Jersey Court Rule 1:38 (the courts are not subject to OPRA) for a copy of the amended complaint as well as the briefs and certifications filed in support of and in opposition to the Motion to Seal.  In subsequent conversations with Judge Thornton's law clerk I was told that I would not receive any of the requested documents unless and until the Motion to Seal was heard and denied.  But, I was invited to submit a written argument in opposition to the motion and to participate in hearing at which the motion will be heard.

My opposition brief was difficult to write because I have not been allowed to know the nature of the lawsuit or any of the factual allegations underlying it.  Nor have I been allowed to see T.S.'s arguments on why he or she believes that the lawsuit should be sealed.  All I know is that the case is of type "701--Prerogative Writs." Basically, I'm almost completely in the dark and will hopefully be given a few crumbs of information during the November 17th hearing.

The hearing will presumably be open to the public.  Anyone who wishes to observe should call Judge Thornton's chambers at 732-677-4100 the day prior to make sure that the hearing hasn't been cancelled or postponed.

Thursday, October 26, 2017

Court to determine if State Trooper overtime pay amounts are public information and whether 100+ day OPRA response delays are permissible.

Update: In an October 30, 2017 court order, Mercer County Assignment Judge Mary C. Jacobson reprimanded the Division of State Police for having a "pattern and practice of lengthy delays" of between 120 and 145 days in responding to Open Public Records Act (OPRA) requests.  She ordered the Division to provide a certification to the court, the requestor's attorney and the Superintendent of State Police "that explains the reasons for the delayed response [and] "describes the current resources and procedures the State Police has in place for managing OPRA requests, and outlines a plan to foster compliance with OPRA's timelines in the future."  Judge Jacobson also ordered the Division to release overtime information on four troopers, provide properly redacted versions of the troopers' final pay stubs and pay the attorney fees of CJ Griffin, the OPRA requestor's lawyer.
On Thursday, October 26, 2017 at 2 p.m., Mercer County Assignment Judge Mary C. Jacobson will hear the case of Libertarians for Transparent Government (LFTG) v. New Jersey State Police, et al, Docket No. MER-L-1055-17. There are two matters at issue: 1) whether the amount of overtime pay a State Trooper receives must be disclosed to the public and 2) whether the court will require the State Police--an agency that routinely takes months to substantively respond to even routine Open Public Records Act (OPRA) requests--to generally honor OPRA's seven business-day response period.

On the first issue, LFTG submitted a records request to the Division of State Police on December 20, 2016 seeking payroll records from 2015 for four specific State Troopers.  In its request, LFTG requested "records that show the amount of overtime earned in 2015 by each of" the four Troopers.  In its April 20, 2017 response, the Division sent LFTG payroll records for the four Troopers that were redacted to remove personal identifiers and overtime earnings.  The Division's suppression of overtime pay was based on state regulation N.J.A.C. 13:1E-3.2(a)(7) which exempts:
The duty assignment of an individual law enforcement officer or any personally identifiable information that may reveal or lead to information that may reveal such duty assignment, including, but not limited to, overtime data pertaining to an individual law enforcement officer.
LFTG's lawyer, CJ Griffin of Hackensack, argued in her brief that since OPRA expressly permits access to payroll information, including the amount of overtime pay, the Department of Law and Public Safety lacks authority to create an administrative rule that exempts all overtime information. "A regulation passed by the Department of Law and Public Safety cannot trump what is expressly made available by statute and OPRA makes payroll records and overtime information available," she wrote.

In its opposition paperwork, the Division submitted a Certification by Major Scott Ebner that stated in part:
Disclosure of overtime pay, overtime hours, and compensatory time for individual State Troopers will reveal the names of the State Troopers who have worked the largest amount of overtime. This information, when viewed in the aggregate, can be used to determine the duty assignments of the troopers at the top of the overtime lists. This link between overtime pay and duty assignment is possible because the highest earners of overtime pay more often than not are those troopers engaged in homeland security, executive protection and undercover assignments. Such knowledge, in turn, will assist terrorists and other wrong-doers who intend to cause harm to New Jersey or high level New Jersey officials.
The Division also pointed out in its opposition that in 2005 then Mercer County Assignment Judge Linda R. Feinberg upheld the Division's denial of overtime records in the unpublished case of Newark Morning Ledger Co. v. Division of State Police of the New Jersey Department of Law and Public Safety.  According to the Division's brief, Feinberg's "ruling was the catalyst for the New Jersey Department of Law and Public Safety to amend its regulation, N.J.A.C. 13:1E- 3.2(a)(7), to include a specific reference to "overtime data pertaining to an individual law enforcement officer."

In her reply to the Division's opposition, Griffin pointed out that the Appellate Division, in its 2015 unpublished decision in New Jersey Second Amendment Society v. Div. of State Police, cautioned the State Police "against the use of [N.J.A.C. 13:1E-3.2(a)(7)] to improperly deny public access to overtime information because that would clearly subvert the express language of OPRA."  Griffin also pointed out that the Division routinely publicizes its Troopers' allegedly confidential duty assignments on social media.   (Note: the Newark Morning Ledger and New Jersey Second Amendment Society cases are attached to the Division's opposition brief as Exhibits D and E, respectively.)

On the second issue, Griffin's brief pointed out that the State Police extended OPRA's seven business-day response period nine separate times causing the Division to not substantively respond to LFTG's request for payroll information on four employees until 121 days had elapsed.  In order to show that this delay was not an isolated incident, Griffin submitted certifications from OPRA requestors Richard Rivera and Gavin Rozzi demonstrating that they each encountered long delays when requesting records from the Division.  She also submitted a chart developed by LFTG showing that 150-day delays were typical.  In opposition, the Division noted only that LFTG did not object to the extensions.  In her reply, Griffin wrote that since the Division "has a pattern and practice of grossly violating OPRA's statutory timelines . . . [t]he Court should therefore enter an Order compelling the State Police to comply with OPRA's statutory timeframes in the future."

Wednesday, October 25, 2017

Galloway taxpayers paid $103,222.57 in legal fees and costs to an OPRA requestor's attorneys.

At its October 24, 2017 meeting, the Galloway Township (Atlantic County) Council authorized an $87,199.44 payment to Clinton-based attorney Walter M. Luers for legal work that he and other lawyers performed in an Open Public Records Act (OPRA) lawsuit that resulted in a significant New Jersey Supreme Court ruling.  This is in addition to $16,023.13 in fees and costs that Galloway taxpayers paid Luers as a result of a July 25, 2014 court order that arose out of the same case.  The $103,222.57 figure does not include fees and costs paid by Galloway taxpayers to their own lawyer, Michael J. Fitzgerald of Linwood, for advocating the Township's interests in this case.

The case was John Paff v. Galloway Township et al, that resulted in a June 20, 2017 decision in which a unanimous New Jersey Supreme Court ruled that "information in electronic form, even if part of a larger document, is itself a government record [and that] electronically stored information extracted from an email is not the creation of a new record or new information; it is a government record."  The decision reversed a contrary ruling handed down by a three-judge Appellate Division panel on April 18, 2016.  The Appellate Division ruling had reversed a June 10, 2014 opinion issued by Atlantic County Superior Court Judge Nelson C. Johnson.

According to an agreement between the Township and Luers, of the $103,222.57, $16,023.13 represents legal work done at the trial level, $51,770.85 for work done at the Appellate Division level and $35,428.59 for work done before the New Jersey Supreme Court.  Attorney who assisted Luers and who will receive part of the proceeds are: Henry F. Furst, Joshua M. Laurie, Raymond Baldino and Michael M. McIlmail.

Monday, October 23, 2017

Judge: Conflict of interest lawsuit against two Bridgeton council members shall move forward.

Update: On January 12, 2018, a Stipulation of Dismissal was filed that "dismissed [the lawsuit] without prejudice and without attorney's fees or costs" because the the case had "been rendered moot by [Bridgeton] having rescinded Resolution 67-17 & 43-17."
On Friday, October 20, 2017, Superior Court Judge Anne McDonnell refused to dismiss a taxpayer's conflict of interest lawsuit against two Bridgeton (Cumberland County) City Council members who voted to sell city-owned land while they served on the boards of organizations that were allegedly "partners" or "collaborators" with the land purchaser.

During a public meeting held on March 7, 2017, the City Council passed Resolution No. 43-17 that authorized the sale of several parcels of real estate to River Grove Urban Renewal Housing Partners, LLC for a housing project.  The resolution noted that Tri-County Community Action Agency, Inc. was one of the "partners involved in the project."  The resolution passed by a 3-2 vote, with Council President Gladys Luguardo-Hemple and members James Curtis Edwards and Jack Surrency voting in favor and members William D. Spence and Michael D. Zapolski, Sr. voting against.

In his lawsuit, Bridgeton resident Thomas Martin alleged that Tri-County Community Action Agency, Inc. also goes by the name Gateway Community Action Partnership and that Council member Edwards served on that organization's board of directors at the time of his March 7th vote.  In their answer to the lawsuit, Edwards and Surrency admitted to the truth of these allegations.

Martin alleged that he had warned Edwards during the public portion of the March 7th meeting that he could not vote on Resolution 43-17 because he "had a clear conflict of interest" due to him serving on Gateway's board. (Bridgeton Mayor Albert B. Kelly also serves as Gateway's Chief Executive Officer (CEO).)

Martin's lawsuit also alleged that Surrency and Edwards served, respectively, as Chairman of the Board and President/CEO of Complete Care Health Network and that Complete Care "is a self-described 'partner' and 'collaborator' with Gateway."  In their answer to the suit, Edwards and Surrency "neither admitted nor denied" this allegation but Complete Care's website shows that Gateway is one of its "Partners & Collaborators."  Similarly, Gateway's website features an article titled "Gateway, Inspira & Complete Care Partnership will WOW the community."  Martin's lawsuit further alleged that Surrency formerly served as a Gateway board member and that Surrency, Edwards and Mayor Kelly all serve on the Bridgeton Municipal Port Authority which will be directly affected by the the sale of the property.

After casting his March 7th vote, Edwards resigned from Gateway's board by way of a March 10, 2017 letter written on Complete Care's letterhead.  In his lawsuit, Martin characterized Edwards' resignation as "a transparent and ineffective attempt to absolve himself of any conflicts."

At its April 18, 2017 regular meeting, the City Council brought up Resolution 67-17 which was very similar to Resolution 43-17.  According to Martin's lawsuit, Resolution 67-17 was not listed on the meeting's agenda and wasn't raised for a vote until after Zapolski had left the meeting.  According to the suit, the absence of the resolution from the agenda and the timing of the vote were done for "the express and impermissible purpose of denying a vote to a known dissenter."  The resolution was passed 3-1, with Luguardo-Hemple, Edwards and Surrency voting in favor and Spence voting against.

The main thrust of Martin's lawsuit is that Edwards and Surrency were conflicted from voting on both 43-17 and 67-17 and that the court ought to render both resolutions null and void.

Despite Judge McDonnell's July 20, 2017 order that required Surrency and Edwards to respond to Martin's interrogatories by August 31, 2017, Surrency's and Edwards' lawyer told Martin's lawyer in a September 9, 2017 letter that the pair "would not be answering interrogatories as a Motion to Dismiss will be filed in the next few days."  (Both the order and the letter are attached as exhibit's to Martin's cross-motion.)  On September 14, 2017, Surrency and Edwards did file such a motion.  However, as noted above, Judge McDonnell, in her October 20, 2017 order, denied their motion and granted Martin's cross-motion to require Surrency and Edwards to answer Martin's interrogatories within 30 days and for the City to properly respond to Martin's interrogatories in accordance with his demand letter of September 18, 2017. (The demand letter is attached as an exhibit to the cross-motion.)

Monday, October 16, 2017

Appellate Division exempts all "student records," even those from which all student personal identifying information is redacted, from OPRA.

In an October 16, 2017 published (and thus precedential) decision, a three-judge panel of the New Jersey Superior Court, Appellate Division ruled that unless a record requestor is an "authorized person or organization" defined by New Jersey regulations, no record "related to an individual student" may be disclosed by school officials absent parental consent or a court order.  According to the opinion:
For example, a document reflecting a school district's settlement of claims for special services by a hypothetical disabled student, Mary Jones, remains a "student record," even if her name and other personal identifiers are removed from the settlement agreement. The record still "relates" to Mary Jones and discusses aspects of her life. The document does not cease becoming a "student record," or change its fundamental character, even if, say, a redacting employee took an extra-wide marker to mask the child's name, address, Social Security number, and other demographic information, or replaced the actual names within it with fictitious names.
If such a court order is sought, the Appellate panel requires that parents must be given an opportunity to comment on proposed redactions to any records relating to their children.

This sweeping decision appears to justify the complete suppression, at least initially, of all settlement agreements that resolve lawsuits filed by or against students.  Thus, when a settlement is reached in the lawsuit filed by "Jane Doe," a fourth grade girl who claimed she was "raped 'hundreds of times'" by a now retired Hillsborough (Somerset County) elementary school principal, Hillsborough taxpayers will not be entitled to disclosure of even a heavily redacted version of the settlement agreement without first obtaining a court order. 

It is not clear at this point whether taxpayers who sue to obtain such a court order will be entitled to recover their attorney fees from the school district if they are successful.  Under the Open Public Records Act (OPRA), successful litigants are entitled to recover their attorney fees and court costs from the agency that wrongfully withheld the records.  The Appellate panel likened a lawsuit filed in accordance with its opinion to a common-law public records access case where the availability of attorney fees and court costs is at best unclear.

While I appreciate the need to keep some student records confidential, I believe that some categories of student records, including those that disclose settlements paid by taxpayer dollars, must remain readily available to the public.

In its opinion, the panel recognized the likelihood of an appeal to the New Jersey Supreme Court and "encourage[d] the New Jersey Department of Education to consider formulating 'best practices' guidance – perhaps expanding or revising the existing regulations – to address the myriad issues of implementation that have been presented by [this opinion]."  Hopefully, either the Supreme Court or the Department will ensure that this need is accommodated. 

Friday, October 6, 2017

Is a quorum of a municipal governing body present when a majority of the body's members are recused, conflicted or choose not to vote?

Amazingly, this rather straightforward question is unsettled and bills seeking to clarify it have languished in the Legislature since 2011.

On October 3, 2017, Anthony Bellano of the Cinnaminson Patch published an article about how the five-member Cinnaminson Township Committee, during a public meeting, passed a motion, with only two expressed, affirmative votes, to refer one of the governing body's members to the Burlington County Prosecutor and the New Jersey Department of Community Affairs for official misconduct investigations.

Voting in favor of the motion were Mayor Anthony Minniti and Deputy Mayor William “Ben” Young.  Committeeman Donald Brauckmann, who was the subject of the investigation referral, did not vote or participate because of a clear conflict of interest.  According to the article, Committeeman Howard “Bud” Evans "recused himself due to his friendship with Brauckmann" and Committeeman John McCarthy "abstained because he said he didn’t have enough time to thoroughly read the results of the investigation and make an informed vote."

Some members of the public who observed the meeting expressed confusion as to how only two affirmative votes--cast by less than a majority of the members present--could carry the motion.  According to the Patch article, Township Solicitor John Gillespie "refused to answer" residents' questions regarding whether two votes were enough to carry the motion.

After searching on-line and speaking with Laura C. Tharney, Executive Director of New Jersey Law Revision Commission, I learned that the Commission had published a "Final Report relating to Effect of Abstentions" in April 2011.  This report concluded that under current, sometimes conflicting state court decisions, the vote of a person who abstains from voting is counted as "yes" vote under the common law unless he or she has "expressed opposition, in which case" he or she is counted as voting "no."  But, the report notes that the Commission had "found no case describing what kind of expression of opposition would suffice to make the abstention a 'no' vote."

The report also found that if a member is not entitled to vote, he is not counted as present to constitute a quorum and that "if a member recuses himself and takes no part in the proceedings even if he is physically present and would not necessarily be barred from voting, his presence does not count toward a quorum."  The report noted that "it may be particularly hard to determine whether a member fully recused himself or whether he merely abstained. In the first case, his vote would not count; in the second, he would be counted as affirmative."

Under this murky guidance, Brauckmann would not have been counted toward the quorum because he was  clearly conflicted.  Whether Evans should have been counted toward the quorum depended on whether his decision to recuse himself, due to his friendship with Brauckmann, was a well reasoned decision.  If he properly recused himself, he also would not have been counted as present for the purposes of a quorum.  But, had he instead of recusing himself announced that "I am a good friend of Donald Brauckmann and really oppose this attempt by Minniti and Young to refer him to the prosecutor, but because of my friendship I am abstaining from this vote," then it appears that he would have been counted toward the quorum and his vote would have been counted as a "no." 

According to the Patch article, McCarthy used the word "abstained" instead of "recused" so, if he truly abstained, he would have counted toward the quorum but whether his vote counted as a "yes" or "no" would turn on whether he expressed a sufficient level of opposition to the substance of the motion.

In sum, Minniti's and Young's "yes" votes would seem to have carried the motion only if: a) either Evans, McCarthy or both of them abstained (rather than recused themselves) and b) if one or none of the abstainers expressed no opposition to the substance of the motion.  In such a case, the quorum of three members would have been satisfied and the number of "yes" votes would have exceeded the number of "no" votes.  If, however, Evans and McCarthy both "recused" instead of "abstained," then the vote would have been out of order for want of a quorum.  And, if Evans and McCarthy both abstained and announced their opposition to the motion, the motion would have lost by a 2-2 vote.

At the end of its report, the Commission recommended legislation that would clarify matters.  In the current Legislative Session that expires in January 2018, Assembly Bill No. 2896, introduced by Assemblyman Ronald S. Dancer, would establish the following rule:
[W]hen a member of a public body is attending a meeting, but abstains or fails to vote on a matter before the public body, the following provisions shall apply: the member shall not be counted as voting either for or against the matter; if the member is legally entitled to vote and has not recused him or herself from consideration of the matter, the member shall be deemed present for the purpose of determining whether there is a quorum of the public body to consider the matter; and if the member is not legally entitled to vote because of conflict of interest or otherwise, or has recused him or herself from consideration of the matter, the member shall not be counted as present for the purpose of determining whether there is a quorum of the public body to consider the matter.
If Dancer's bill would have been law when Cinnaminson's motion was voted upon, the passage of the motion would have still turned on Evans' and McCarthy's recused-vs-abstained status.  But, at least the importance of the recused-vs-abstained distinction would have been better realized and their ultimate decisions to abstain or recuse would have been reached in a more methodical and less arbitrary manner.

Dancer's present effort has been before the Legislature since December 2011.  Dancer introduced an identical bill (A2437) in the 2014-2015 Legislative Session and, along with Senators Nicholas P. Scutari and Ronald Rice, introduced the same bills in the 2012-2013 session (A4436 and S767). Scutari introduced an identical bill (S3121) in the 2010-2011 session.  The only time any version of the bill was heard was on March 4, 2013 when S767 was favorably reported out of the Senate's Community and Urban Affairs Committee by a unanimous 5-0 vote.

Monday, August 28, 2017

Three-judge panel split 2-1 on whether police dash-cam video is available under OPRA.

On August 28, 2017, two judges out a three-judge Appellate Division panel issued a non-precedential opinion granting a Lakewood resident access to a police dash-cam video of an August 31, 2013 traffic stop that resulted in the arrest and indictment of a Lakewood police officer.  One judge, however, filed a dissenting opinion that argued that the recording was a "criminal investigatory record" and thus exempt from disclosure.

The case is similar to Paff v. Ocean County Prosecutor's Office.  There, as in today's case, the decision turned on whether a local police directive requiring the video to be recorded satisfied the "not required by law" prong of the criminal investigatory record exemption.  Under OPRA, a record cannot be exempt as a criminal investigatory record if it is required by law to be made.  Judges Ellen Koblitz and Thomas W. Sumners ruled that a Lakewood police directive that required dash-cam filming off all traffic stops was a "law" that removed the videos from the criminal investigatory record exemption.  Judge Susan L. Reisner disagreed and wrote a dissenting opinion.

The issue of whether a local police directive satisfies the "law" requirement is under consideration of the New Jersey Supreme Court which is presently reviewing the Paff matter.

Beside the dash-cam issue, all three judges agreed that the sufficiency of the information contained in the prosecutor's press release regarding the Lakewood officer's arrest should be remanded to the trial court.  All three judges also agreed that the trial court should examine whether police reports of the incident should have been released, whether the video is disclosable under the common law right of access and whether attorney fees issued to the plaintiff in the case should be recalculated.

Walter M. Luers of Clinton is the plaintiff's attorney.

Sunday, August 27, 2017

What is a "payroll record" under OPRA and what type of information does it disclose?

While "personnel records" of public employees are mostly exempt under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-10 makes certain types of personnel information expressly available to the public.  Specifically, a public employee's "name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record" and must be disclosed to the public.

As one can see, one of the items within the public domain is an employee's "payroll record."  But, what exactly is a payroll record and what information must it contain?

This question was answered by the Government Records Council (GRC), the State agency charged with enforcing OPRA, in the case of Gregory Havlusch, Jr. v. Borough of Allenhurst (Monmouth), Government Records Council Complaint No. 2011-243.  In that case, the GRC's Executive Director opined (see pp 3 to 5 of the December 18, 2012 Findings and Recommendations of the Executive Director) that "an employee's payroll records should include information that will allow a person to determine whether an employee took a leave of absence, the dates of the leave, whether it was paid, and if so, the amount of salary received for the paid leave of absence."

Based on this ruling, I made a request to the City of Bridgeton (Cumberland County) for the "payroll record" of Jeffrey Bordley who serves as a police officer and, incidentally, also serves as an elected member of the Vineland Board of Education.  (For those who wish to make a similar request, I've placed a text file of an OPRA request on-line here.)

Bridgeton sent me two files in response to my request, an "Attendance Transaction Report by Employee ID"  and a "Detail Time Worked by Employee ID."

I invite readers to examine these reports carefully.  While they are difficult to fully understand, they appear to show that Bordley was using sick, vacation and administrative time as well as worker's compensation, family medical leave and "Police Paid Administrative Leave" for substantial periods of time between May 2015 and May 2017.  It should be noted that Bordley was injured in a serious head-on collision on Saturday, February 4, 2017, which probably accounts for much of the time he wasn't working regular shifts in 2017.  It is unknown, however, why he was not working many of his normal shifts prior to February 4, 2017.

Citizen's who suspect that a public employee may be on extended leave may want to request his or her "payroll record" in order to confirm or dispel that belief and to determine whether the leave is paid or unpaid.

Friday, August 25, 2017

Bergen judge: Edgewater Borough's response to records request was "too elusive."

In an August 18, 2017 opinion, Bergen County Assignment Judge Bonnie J. Mizdol took Edgewater Borough officials to task for being "too elusive" about the search they undertook to find records sought by an Open Public Records Act (OPRA) requestor.  She ordered the Borough to undertake an additional search, have each person involved in the search provide his or her own detailed certification and to pay the requestor's court costs and attorney fees.

The requestor sought various paper and electronic records pertaining to a development project.  In its first response, Edgewater granted a few responsive records and denied access to the rest "without any reason or justification for the denial."  At a July 23, 2017 hearing, Judge Mizdol ordered Edgewater to submit certification describing its records search method (called a Paff Certification) and an index showing the documents the search turned up (called a Vaughan Index). In response the Borough produced a two-page certification and a two-page index.

Edgewater's election to provide three partial responses to the request caused Judge Mizdol to remark that the Borough's "piecemeal production of documents is telling and indicative of a less than adequate search."  Regarding the Borough's two-page Paff certification, Mizdol found thatit was "simply too elusive to ascertain that a proper search was performed . . . [and] the Court does not know what defendants did or did not do to search for the requested records to satisfy their obligations."  Judge Mizdol ordered Borough officials to
undertake an additional search for records . . . and provide an exhaustive Paff Certification attesting to the comprehensiveness of the search. If the task of searching has been delegated, then each and every party tasked with such delegation shall also provide a Paff Certification. The Custodian shall, likewise, provide to the plaintiff any additional documents discovered during the search, or, as appropriate, a Vaughn Index (privilege log) outlining with specificity the privilege claimed.
The court's opinion noted that the requestor, 65 River Road Partners, LLC, "is involved in several pieces of contentious litigation with the Borough of Edgewater regarding approximately 18.73 acres of vacant land along the Hudson River which [it] seeks to develop as multi--family housing units with a set aside for low and moderate income households in compliance with the Fair Housing Act, Council on Affordable Housing (COAH)."

Sunday, August 13, 2017

Hunterdon Prosecutor asked to allow OPRA requests to be submitted electronically.

Update 08/24/17: The Hunterdon County Prosecutor's Office updated its OPRA web page to advise records requestors that OPRA requests "can be mailed, sent electronically (FAX: 908-806-4618 or EMAIL:, or presented in person to the Hunterdon County Prosecutor's Office."  As can be seen by an archived page, the previous version of the page advised requestors only that requests "can be mailed or presented in person to the Hunterdon County Prosecutor's Office." Similarly the previous OPRA request form and the present form differ in that the new form informs requestors that they may submit their request electronically.
The following letter was sent by Libertarians for Transparent Government, a non-profit I serve as executive director, to the Hunterdon County Prosecutor's office.  At issue is that office's insistence that OPRA requestors submit their requests only by hand-delivery or regular mail.
Deborah D. Factor, First Assistant 
Hunterdon County Prosecutor's Office
65 Park Avenue
Flemington, NJ 08822-0756
Via fax to 908-806-4618 and e-mail to

RE: Open Public Records Act

Dear First Assistant Factor:

Your office's on-line instructions to the public on how to submit an Open Public Records Act (OPRA) request do not provide a way for those requests to be e-mailed or faxed to your office.  Rather, the page states that "[o]nce fully completed, the request form can be mailed or presented in person to the Hunterdon County Prosecutor's Office."   Your OPRA form itself states that "[t]he completed request form may only be either mailed or hand-delivered."

Your office's requirement that citizens use only hand-delivery or U.S. mail to submit OPRA requests is not only out-of-step with the way people communicate in the 21st Century, but also runs afoul of the Government Records Council's (GRC) September 29, 2015 decision in Dello Russo v. East Orange, GRC Complaint No. 2014-430.  In that case, the GRC held that East Orange's "policy of banning submission of OPRA requests electronically represents an unreasonable obstacle on access."  It held that while the City did not need to accept OPRA requests by both fax and e-mail, it must accept some form of electronic submission.

Would you please amend your OPRA form and instructions so that they conform to the GRC's holding?

Very truly yours,

Tuesday, August 8, 2017

Wall Township school board sued over refusal to disclose yearbook invoice.

Update: 10/31/17: After discovering that the invoice that the Board produced on August 23rd was not the original invoice but one that was revised on July 21, 2017, we insisted upon receiving the original invoice that was issued on June 3, 2017.  The Board has refused to provide the original invoice.  Accordingly, the court has scheduled a hearing for Tuesday, January 9, 2018 to address the matter.

Update 08/23/17: After this suit was filed, the Wall school board released the requested invoices.  They are on-line here.

On August 3, 2017, Libertarians for Transparent Government (LFTG) filed a lawsuit against the Wall Township Board of Education challenging its refusal to disclose an invoice from Jostens, the high school's yearbook vendor.

On June 19, 2017, LFTG requested a copy of Jostens' invoice regarding its production of the 2017 high school yearbook.  The request was made because one of the student's photographs in the 2017 yearbook was altered so as to remove references to Donald Trump.  As a result, some of the yearbooks have been reprinted at a cost of $10,000. The school board has claimed that no public funds were used for the reprint.  In response to LFTG's records request, the school board confirmed that an invoice existed but denied access claiming that the invoice was protected by the deliberative process privilege.  In his June 19, 2017 denial, Board Secretary Brian J. Smyth stated that "the invoice has not been reviewed and approved for payment [thus it] is exempt while the district deliberates as part of the review."

The lawsuit is captioned Libertarians for Transparent Government (LFTG) v. Wall Township Board of Education and Brian J. Smyth, Docket No. MON-L-2848-17 and LFTG is being represented by Walter M. Luers of Clinton.

Sunday, August 6, 2017

Identity of one of the cops who shot Radazz Hearns has been confirmed.

On October 15, 2015, both Keith Brown of NJ Advance Media and Isaac Avilucea of the Trentonian reported that State Police Detective Doug Muraglia was one of the two officers who together fired as many as eighteen shots at Radazz Hearns, then age 14, on August 7, 2015.   The other officer who fired at Hearns was identified by the newspapers as Mercer County Sheriff’s Detective James Udijohn.

Yet, when I asked the Attorney General's office to confirm that Muraglia and Udijohn were indeed the shooters, it refused.  So, with the help of Hackensack attorney CJ Griffin I filed an Open Public Records Act (OPRA) lawsuit that sought the names of the two officers who opened fire on Hearns.  On June 30, 2016, I prevailed before Mercer County Assignment Judge Mary C. Jacobson and the State appealed.

Because of the Supreme Court's recent decision in North Jersey Media v. Lyndhurst, the State, likely realizing that it was going to lose its appeal, decided to give me one Use of Force Report that identifies Muraglia as having fired his weapon.  I am hopeful that the State will soon confirm the other officer's identity and drop its appeal.

Tuesday, August 1, 2017

Appeal taken from Burlington County ruling that 3 year old unapproved meeting minutes are "deliberative" and thus not subject to OPRA.

On May 26, 2017, Burlington County Assignment Judge Ronald E. Bookbinder issued a written opinion holding that the minutes of an October 19, 2012 public meeting of the Moorestown Ethical Standards Board were "deliberative" and thus exempt under the Open Public Records Act (OPRA) at the time I requested those minutes on December 28, 2015--more than three years after the meeting was held.  Judge Bookbinder deemed the minutes "deliberative" because the Board had not yet "approved" them at the time my OPRA request was received.

In his ruling, Judge Bookbinder found that the Ethical Standards Board did violate the Open Public Meetings Act (OPMA) by not making its meeting minutes "promptly available" to the public.  He ordered that the Board, going forward, "must annually approve and release all prior unapproved meeting minutes at its required reorganizational meeting" and that "if the Ethics Board receives a request for copies of its prior meeting minutes before this deadline, then the Board must convene a Special Meeting within thirty (30) days of the request in order to approve and release the requested minutes."

Through attorney CJ Griffin of Hackensack, I have appealed Judge Bookbinder's ruling.  I believe that meeting minutes, because they simply record what happened during a meeting, are not "deliberative" and are therefore public records at the moment they are created and regardless of whether or not they are "approved."  Also, it is important that people are able to enforce their OPRA (rather than OPMA) rights for unapproved meeting minutes because only OPRA (and not OPMA) requires the custodian to reimburse a successful requestor his or her attorney fees.

Background on the case and copies of court documents are available at my March 3, 2016 blog article.

Monday, July 31, 2017

Using Paff v. Galloway to get docket information from the Office of Administrative Law.

This project is admittedly a work-in-progress, but I thought that the open government community might be interested in learning how I am using the New Jersey Supreme Court's decision in Paff v. Galloway to obtain useful docket information from the Office of Administrative Law.

I'll discuss my project below, but I want to first review the issue that Paff v. Galloway decided and why docket information kept by the Office of Administrative Law is of value to journalists and citizen activists.

Paff v. Galloway, decided by the New Jersey Supreme Court on June 20, 2017, established that, in general, "information in electronic form, even if part of a larger document, is itself a government record [and that] electronically stored information extracted from an email is not the creation of a new record or new information; it is a government record." Prior to this decision, agencies would often deny requests for data extractions from government databases claiming that producing such an extraction would obligate them to create a new records--something that the Open Public Records Act (OPRA) does not require.

When the Supreme Court issued its decision, I considered other government databases that contained useful information but which were currently unavailable to the public.  The database containing docket information on cases filed with the Office of Administrative Law (OAL) caught my attention because it is not available on-line anywhere and because the decisions that OAL judges make implicate important public issues of which citizens and the media are normally not aware. 

For example, OAL judges rule on special education cases, school ethics commission cases, State Police disciplinary cases and Civil Service Commission cases.  (Actually, the OAL judges don't make final rulings--rather they make recommendations that an agency head, such as the Commissioner of Education, may later accept, modify or reject.) Click here for a listing of all the types of cases that OAL judges decide.

Working through non-profit Libertarians for Transparent Government, I started my project by making an OPRA request on June 22, 2017 for:
Fields from the OAL's contested case database that contain the following types of data: a) name of petitioner/appellant, b) name of adverse party, c) name of public employer (if applicable), d) date of hearing, e) location of hearing, f) OAL docket number, g) Agency docket number and h) name of judge. Please limit the response to only those records that correspond to cases that are, as of June 22, 2017, scheduled for a hearing at any location during the month of September 2017.
My first response was received on July 13, 2017.  While the OAL gave me the database extraction, it didn't provide it in the format requested.  Instead of providing an Excel worksheet that users could sort and filter, the OAL provided a PDF file printed in 5-point type that could not be sorted or filtered. (The OAL's letter and PDF file are on-line here.)  When I called the OAL's records custodian to complain, I was told that the New Jersey Attorney General's office was reluctant to provide an Excel file because it was concerned that providing this data in Excel or similar format would make it too easy for a requestor (or someone downstream from the requestor) to alter the data and then publicly represent that altered data as being genuine.  After I sent the OAL Custodian a July 14, 2017 letter, he and the Attorney General reconsidered and provided an Excel file, which I've placed on-line here.

The Excel file at the link above is certainly not complete--rather it lists about 350 cases that were on June 22, 2017 scheduled to be heard by OAL judges in September 2017.  But, the file gives a good idea of what type of information is available and how it could be of value to the public.

For instance, residents of Irvington (Essex County) might find it interesting that two hearings involving Michael Chase are scheduled before Judge Kimberly Moss in September.  This case pretty clearly relates to former Police Chief Michael Chase who claimed that he was illegally fired in 2016.   Or, Perth Amboy (Middlesex County) residents might be interested in a complaints under the school ethics law against school board members Israel Varela, Kenneth Puccio and Samuel Lebreault that are currently scheduled before Judge Michael Antoniewicz on September 1, 2017.  (The hearings are open to the public but people other than the parties rarely attend because they are not aware of the hearings' dates, hours and locations.)

So, look through the Excel file to see if any of the cases interest you. For any that do, e-mail the following OPRA request to OAL Custodian Candice G. Hendricks at
"Under both OPRA and the common law right of access, for [name and docket number of case] I would like a copy of the agency's transmittal form (N.J.A.C. 1:1-8.2) together with the attachments to the transmittal form."
The transmittal form and attachments will provide you with documents that will allow you to understand the nature of the case.

I plan on seeking a much larger data extraction from the OAL that will contain all of its cases.  When I obtain this extraction, I will post it on this blog.

Thursday, July 20, 2017

Middlesex Prosecutor releases "Use of Force" reports related to Edison man's death after police encounter.

Prosecutor Andrew C. Carey
On June 4, 2016, the Middlesex County Prosecutor's Office (MCPO) issued a press release that reported that Daniel Nagahama of Edison was pronounced dead on June 2, 2016, three hours after he had an encounter with Highland Park police.  The press release did not report the names of the Highland Park officers with whom Nagahama had the encounter nor did it report what types of force, if any, the officers employed.  All that was reported was that Nagahama became belligerent and struggled with police after they attempted to revive him, that he was not placed under arrest but was taken to the hospital by rescue workers.

In August 2016, Libertarians for Transparent Government, a New Jersey nonprofit organization (LFTG), represented by Hackensack lawyer CJ Griffin, filed a lawsuit against the MCPO seeking additional records that would disclose the names of the officers, the type of force they used and other details that would provide more details and give better context to Nagahama's death.  Details on that suit are set forth in this article.

On November 18, 2016, Middlesex County Assignment Judge Travis L. Francis ruled that the Use of Force reports completed by Highland Park officers were public records that needed to be disclosed. He ruled, however, that other requested records were exempt from disclosure.  Later, Judge Francis stayed disclosure of the Use of Force Reports pending the Supreme Court's ruling in North Jersey Media v. Lyndhurst where one of the issues to be decided was whether Use of Force Reports were exempt from disclosure.

On July 11, 2017, the Supreme Court decided in the Lyndhurst case that Use of Force reports are public records that must be disclosed under the Open Public Records Act (OPRA).  Given that ruling, the MCPO released the Use of Force reports.  The MCPO also agreed to pay $8,300 to cover LFTG's court costs and attorney fees.

The Use of Force Reports, while sparse, do show that four Highland Park officers encountered Nagahama prior to his death: Sergeant Jason C. Culver and Patrolmen Brian O'Mara, Kevin M. Garrity and Christopher DeCosta.  All four reported that Nagahama was arrested (contrary to the press release), that he was "under the influence" and "resisted police officer control."  All four also reported that they placed Nagahama in a "compliance hold" and used their "hands/fists" during the encounter.  Additionally, O'Mara reported that he used a "chemical/natural agent" during his encounter with Nagahama.

Tuesday, June 20, 2017

Supreme Court rules that fields of data extracted from e-mails are OPRA "government records."

In a unanimous decision issued today in John Paff v. Galloway Township, et al, the New Jersey Supreme Court held that under the Open Public Records Act (OPRA), "information in electronic form, even if part of a larger document, is itself a government record [and that] electronically stored information extracted from an email is not the creation of a new record or new information; it is a government record."

Thus, it appears that going forward, the public is generally entitled to information stored in government databases, subject to normal confidentiality constraints and payment of a service charge if extraction of the requested data requires “a substantial amount of manipulation or programming of information technology.”

In its ruling, the Court rejected the Appellate Division's April 18, 2016 opinion that held that for electronically stored information, “OPRA only allows requests for records, not requests for information.”  The Supreme Court held that the Appellate Division's "position cannot be squared with OPRA’s plain language or its objectives in dealing with electronically stored information."

The Supreme Court also ruled that courts are to grant no deference to decisions or information advice given by the New Jersey Government Records Council (GRC) except when the Appellate Division considers appeals of GRC decisions.  It also recognized that while "[i]t may take only two to three minutes for an IT Specialist to make accessible fields of information from two weeks of emails; it will take considerably longer for the Township Clerk and Chief of Police to determine whether the requested information in each email may intrude on privacy rights or raise public-safety concerns."  Accordingly, the Court remanded the matter back to the trial court to address any such confidentiality concerns.

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

Sunday, June 18, 2017

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.

Agustin Garcia v. Bergen County Prosecutor's Office et al, Docket No. BER-L-6475-16
Hon. Bonnie J. Mizdol, A.J.S.C.
February 13, 2017
Click here for the court's decision.

Summary:  An inmate serving a life sentence for murder is precluded from filing any more OPRA lawsuits without prior approval from the court because the inmate has demonstrated a pattern of filing frivolous and baseless OPRA lawsuits.  I have been informed that this case is currently under appeal.

Wednesday, June 14, 2017

Appellate Division rebuffs OPRA requestor's Declaratory Judgment Act lawsuit.

In Stop & Shop Supermarket v. County of Bergen, a three-judge panel of the New Jersey Superior Court's Appellate Division today issued a published decision holding that a record requestor's suit that sought a declaration that Bergen County violated the Open Public Records Act (OPRA) by failing to disclose an important document in response to a 2011 records request was mooted by the County's production of that document in response to the requestor's 2014 request.

The document at issue, an engineering report authored in January 2011, was within the scope of the supermarket's July 2011 OPRA request but the County did not acknowledge the report's existence when responding to that request.  The report's existence became known to the supermarket only after the county disclosed it in response to a the supermarket June 2014 request. The supermarket filed a lawsuit under the Declaratory Judgment Act that sought a ruling that the County violated OPRA by failing to disclose the engineering report in response to its 2011 OPRA request.  The lawsuit also sought an order requiring the County to pay the supermarket's legal fees for bringing the lawsuit.

The trial court granted the County's motion to dismiss.  The court held that the lawsuit was moot and that an attorney fee award was not warranted because the supermarket had the engineering report in its possession prior to the lawsuit's filing.  The Appellate Division affirmed the dismissal and noted that the the supermarket's only available OPRA remedy was to seek imposition of a civil penalty against the County's records custodian for having knowingly, willfully and unreasonably denied access to the report in 2011.  The supermarket, however, did not seek imposition of a penalty.