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On August 28, 2017, two judges out a three-judge Appellate Division panel issued a non-precedential opinion granting a Lakewood resident access to a police dash-cam video of an August 31, 2013 traffic stop that resulted in the arrest and indictment of a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 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.

Tuesday, May 23, 2017

Township in Cumberland County "unable to locate" some closed meeting minutes; will approve years of other closed meeting minutes at June 7th meeting.

Update: The agenda of the June 7, 2017 Township Committee meeting shows that approval was sought for  "Closed Session Minutes From July 3, 2002 Through April 19, 2017."
The Open Public Meetings Act (OPMA) requires public bodies to make the minutes of their meetings, both public and non-public (i.e. closed or executive), "promptly available to the public."  Recent correspondence with one South Jersey township reveals that minutes from closed meetings held five years ago are still not available for public inspection and that minutes from closed meetings held in the 1980's and 1990's have apparently been lost forever.

A May 16, 2017 Open Public Records Act (OPRA) request to Deerfield Township in Cumberland County sought "the minutes of the three (3) most recently held [closed] Deerfield Township Committee meetings for which minutes are available in either full or redacted form."  The request went on to explain that if "the three most recent closed meetings for which minutes are available in whole or part took place ten years ago in April, May and June of 2007, then those would be the minutes that are responsive to this request."

In her May 18, 2017 response, Clerk/Administrator Karen Seifrit wrote that "due to the current unavailability of closed/executive session minutes, there will be a delay in filling your request" and that the closed minutes "need to be approved at the Township’s June 7th meeting."

On the same day that I received her response, I (in my role as Executive Director of Libertarians for Transparent Government (LFTG), which submitted the OPRA request) wrote back to Seifrit.  I wrote that I was astonished at her response because it suggested that the Township considers its closed session minutes from decades ago to still be wholly exempt from public inspection.  (Seifrit's May 18th response and my reply of the same date are on-line here.)

In order to clarify matters, LFTG submitted another OPRA request seeking minutes of two closed sessions that the Township's on-line public meeting minutes show as having been held on March 7, 2012 and June 20, 2012.  The request also sought the minutes of every closed session held in 1983 and 1996.

On May 22, 2017, Seifrit responded to the second OPRA request.  She wrote that the minutes for the March 7, 2012 and June 20, 2012 closed meetings will be approved at the June 7, 2017 meeting and that will disclose them by June 9, 2017.  As to the minutes of the 1983 and 1996 closed meetings, Seifrit wrote that she had "searched for those records and have been unable to locate same."

Seifrit's response presents two problems.  First, most members of the presently comprised Township Committee were not in office when the two 2012 meetings took place. Thus, a majority of the members who will be asked on June 7, 2017 to vote to approve the March 7, 2012 and June 20, 2012 closed meeting minutes were not present at either of those meeting. (Presently serving on the Committee are Frank Spatola, Jr. Mayor and Committee members Abigail Perlstein O'Brien, Rudy Danna, Jr., Bruce Murphy, II and John Stanzione.  According to the minutes of the public meeting held on June 20, 2012, the mayor was then named Laurella and the Committee members present were named Lauermann, Spatola, Stanzione, Montgomery.  Thus, only two members who served on the Committee in 2012 still serve on the Committee in 2017 (i.e. Spatola and Stanzione)). 

Second, New Jersey requires a municipality's meeting minutes to be retained permanently.  (See item no. 0508-0000 of the Municipal Agencies General Records Retention Schedule.)  Accordingly, Deerfield is under a duty to retain all its Township Committee meeting minutes, including those from 1983 and 1996, and a citizen who asks Seifrit for minutes should not be told that she is unable to locate them.

Deerfield's noncompliance with the OPMA is especially disappointing because I personally attended the December 4, 2013 Committee meeting and addressed the Committee during the public comment period about the importance of OPMA compliance.

Thursday, May 18, 2017

Court: OPRA Section 10 allows requestors to ask for personnel "information," does not require a request to be for specific, identifiable records.

In a May 11, 2017 unpublished opinion, Monmouth County Superior Court Assignment Judge Lisa B. Thornton ruled that N.J.S.A. 47:1A-10 requires a records custodian to disclose an 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" even if the request asked for that information instead of a specific, identifiable government record that contained that information.

On September 27, 2016, Libertarians for Transparent Government, a NJ nonprofit corporation (LFTG), submitted an OPRA request for the "date of separation and reason therefor" regarding a school district's former business administrator.  The school district's custodian denied the request because it asked for "information" as opposed to identifiable records.  Judge Thornton wrote:

There is no question that defendant violated the provisions of OPRA by failing to provide information regarding [the former business administrator's] date of separation and the "reason therefor." The court is not persuaded by defendant's argument that the request constituted a request for "information" as opposed to "government records." A plain reading of the statute reveals that "information," in the form of "an individual's name, title, position, salary payroll record, length of service, date of separation and the reason therefor" is specifically discoverable pursuant to N.J.S.A. 47:1A-10.

There are other aspects to this case, which are explained in my October 30, 2016 article.

Monday, May 15, 2017

Court to rule on whether Cumberland SPCA is subject to OPRA.

Update 06/29/17: Judge Anne McDonnell issued a June 29, 2017 Order and Statement of Reasons holding that the CCSPCA is subject to the Open Public Records Act and violated plaintiff's rights by "failing to provide access to the requested records."
Update 05/18/17:  The CCSPCA's answer and opposing certification and brief are on-line here and most of the exhibits to the brief are on-line here.
On Thursday, June 1, 2017, Superior Court Judge Anne McDonnell will hear argument on whether the Cumberland County Society for the Prevention of Cruelty to Animals (SPCA) is subject to the Open Public Records Act (OPRA) and, if so, whether the SPCA improperly denied access to veterinary services invoices it submitted to the City of Millville.

The Cumberland SPCA chapter is under contract with the City of Millville, as well as other area municipal governments, to provide animal shelter and control services.  Part of the SPCA's agreement with Millville requires the City to reimburse the SPCA for veterinary services.  In response to a February 22, 2017 OPRA request submitted by Libertarians For Transparent Government (LFTG), Millville provided several pages of invoices that the SPCA had submitted.  Some of those invoices contained redactions (see, e.g. pp 15, 16 and 23 of Millville's 127-page response) which the City said "were made by the CCSPCA, not the City Clerk's Department."  The City also said that the redactions were "part of what triggered the investigation."  (I understand from speaking with sources that the investigation involved whether or not the SPCA passed on to the City discounts it had received from veterinarians.  I have no information regarding whether or not the allegations underlying this investigation were well founded nor do I have the results of any investigation.) 

LTFG then filed a second OPRA request with the Cumberland SPCA seeking unredacted versions of the invoices.  In response, SPCA lawyer Rocco Tedesco stated that he "want[ed] to make it clear that the Cumberland County SPCA/Vineland Animal Shelter does not consider itself subject to the Open Public Records Act."  Tedesco's response denied LFTG access to the unredacted invoices because the redacted portions of the invoices contained charges assessed to municipalities other than Millville and were, apparently in Tedesco's view, not relevant to LFTG's request. 

On April 21, 2017, LFTG filed suit against the SPCA.  The lawsuit claims that the SPCA and its county chapters are subject to OPRA because they were formed by the legislature and perform a number of traditional government functions, such as law enforcement.  The suit also argues that the Tedesco's refusal to disclose the invoices' redactions violated OPRA because nothing in OPRA permits a government agency to deny access to records that it believes aren't relevant to a request.

LFTG is being represented by CJ Griffin of Hackensack.  Griffin had previously won a similar suit against the Monmouth County SPCA chapter.

Monday, May 8, 2017

Judge: Public not allowed to know how much public money was paid to settle South Jersey special education case.

On May 8, 2017, United States District Court Judge Noel L. Hillman ruled that a Gloucester County school district must keep the amount of its financial settlement with a disabled student confidential partially because the student and his or her parents "may suffer embarrassment from public disclosure of their settlement."  Hillman also wrote that disclosure of the settlement amount could place the student and his or her parents "at an unfair disadvantage in the continuation of" their litigation against another Gloucester County school district which is also a defendant in the lawsuit.

In his six-page opinion, Hillman noted that a 9 year-old, "indisputably disabled" student, identified only by the initials A.S., and the student's parents settled their Individuals with Disabilities in Education Act (IDEA) lawsuit against the Harrison Township School District but are still actively pursuing their suit against the East Greenwich School District. 

East Greenwich opposed A.S.'s motion to seal the settlement amount arguing that "the financial terms of the settlement must be disclosed because Defendant Harrison Township is a public entity."  Hillman wrote that East Greenwich "oversimplifies" the issue and that although "there is at least some general public interest in how much any public school board pays to settle a lawsuit such as this . . . [t]here is no evidence that any member of the public from Harrison Township has any interest in how much money the Township paid to these particular Plaintiffs." 

Hillman also wrote that he "cannot overlook the obvious fact that knowing [the settlement amount] would be helpful to Greenwich in its continued litigation against Plaintiffs."  Since East Greenwich's interests are "purely private," Hillman wrote that those interests "carr[y] little weight in the balancing of the sealing factors."

Ultimately, Hillman ruled that the settlement agreement is public as long as the dollar figures are blacked out.  The dollar amounts to be obscured include the fees that A.S.'s lawyer is to receive from Harrison or its insurer.

It is possible that after the A.S.'s litigation against East Greenwich is resolved, the alleged embarrassment that A.S. and his or her parents would suffer will no longer be enough to justify the continued sealing of the settlement amount.

Monday, May 1, 2017

Court rules that NJ Insurance Underwriting Association is subject to OPRA. Employees' "modest" salaries disclosed.

In an October 26, 2016 article, I reported that Libertarians for Transparent Government, Inc (LFTG) had sought a court ruling holding that the  New Jersey Insurance Underwriting Association (NJIUA) is subject to the Open Public Records Act (OPRA).  In an April 10, 2017 court order, Essex County Superior Court Judge Jeffrey B. Beacham held that the NJIUA is indeed subject to OPRA and violated it by failing to fulfill LFTG's records request and by failing to create an OPRA request form.

The order also compelled the NJIUA to produce a list of employee names and salaries that LFTG had requested. The list of employee salaries produced as a result of Judge Beacham's order shows that NJIUA President Steve Mutterperl's salary is $199,072 while Chief Information Officer Israel Popack and Controller Albert Chin make $182,468 and 151,242 respectively.  In his September 16, 2016 letter to LFTG, NJIUA lawyer Hugh P. Francis claimed that the NJIUA "has 17 modestly paid employees [and] is reluctant to release their names and salaries without knowing the need for such information . . ." 

Although the NJIUA initially resisted the lawsuit, it ultimately decided to not object to Judge Beacham signing LTFG's proposed order.  The order also requires the NJIUA to pay LFTG's attorney fees and costs.  LFTG was represented in the lawsuit by CJ Griffin of the Hackensack-based firm of Pashman Stein Walder Hayden.

Wednesday, April 26, 2017

Lawsuit claims that Howell police illegally obtained three citizens' photos from DMV database to create "wanted" poster.

Yesterday, I wrote about Howell Township (Monmouth County) Manager Jeff Mayfield's warning to Township employees regarding three "freelance journalists" who he said wanted "to instigate public employees to take actions that are illegal with the hopes of being able to file a lawsuit."  Comments on my Facebook page alerted me to a federal civil rights lawsuit that the three recently citizens filed against Mayfield and other Howell officials.

In their lawsuit, filed by Lawrenceville attorney Anthony R. Fiore, Jr, Steven Wronko, Collene Wronko and Jennifer Coombs claim a) that Howell Police Chief Andrew Kudrick distributed a December 12, 2016 memo incorrectly instructing officers to arrest for Obstruction motorists who refuse to provide their licenses, registrations and insurance cards during motor vehicle stops (according to the complaint, an Obstruction charge requires more than simply refusing to produce credentials); b) Kudrick sent the same memo to all other police chiefs in Monmouth County to encourage them to have their officers "arrest motorists who do nothing more than refuse to provide their credentials contrary to well defined law in New Jersey;" c) Kudrick sent an e-mail to all other county police chiefs inquiring whether they received the same OPRA request that Steven Wronko sent to Howell and d) Howell Police Captain John Storrow "illegally accessed the New Jersey Motor Vehicle Online Access to Motor Vehicle Records database and retrieved information related to Plaintiffs, Steven Wronko, Collene Wronko and Jennifer Coombs." 

The suit goes on to allege that Mayfield, Kudrick and Storrow constructed a poster consisting of photos and other data concerning the Wronkos and Coombs that Storrow took from the DMV's database and placed it behind the counter at the Howell Township Clerk's office.  The suit claims that the poster was made to look like a "Wanted" poster and was was placed in a public place so that public could view the trio's photos and personal information.

The lawsuit contains only allegations--nothing has yet been proven.  Howell and its officials will have an opportunity to contest the allegations and have them tried before a jury.

Tuesday, April 25, 2017

Howell Manager warns staff about bloggers who videotape Township employees.

On February 23, 2017, Howell Township (Monmouth County) Manager Jeff Mayfield distributed a memo warning Township workers about three "freelance journalists" who he claims intend "to instigate public employees to take actions that are illegal with the hopes of being able to file a lawsuit."

Along with his memo, he included photographs of the trio along with their last known addresses and, in one case, the make, model and license plate number of her car.  I've placed the memo, but not the photographs, on-line here.  Each photo is head shot akin to a driver license photo.  Beneath each photo is a description listing the age, address and ethnicity of the person and the phrase "Known to frequent the Howell Township area.  Subject may attempt to audio and video tape government employees and government buildings."

Mayfield doesn't claim that any of these three did anything illegal.  It is legal for citizens to visit the public areas of government buildings and ask questions of government officials and employees.  Indeed, Mayfield's memo concedes that "people are permitted to videotape any location on public property."  According to the memo, the trio "approached the Township Clerk's window and began asking a variety of questions and videotaping through the windows a couple of months ago."  Mayfield also claimed that one of the trio "entered the lobby of the Howell Police Department on Friday afternoon and began asking for a form that does not exist and then began videotaping through the glass window at the Communications window."

Mayfield advises Township employees to address the trio "by their entire names and addresses as they do not like this because their information will then be posted on their own posted video."  According to the memo, the trio typically "broadcast their videos on a Facebook page."

Sunday, April 16, 2017

Division on Civil Rights rosters and complaints are public records under OPRA.

Recent Open Public Records Act (OPRA) requests to the New Jersey Division on Civil Rights resulted in the Division disclosing a roster of recent complaints alleging discrimination as well as some of the complaints themselves.  Some of the complaints against government entities contain astonishing allegations, e.g. a 61-year-old male maintenance worker employed by the Somerville (Somerset County) Board of Education who complained that his supervisor tried to grope him and "frequently talk[ed] about engaging in anal sex with" him.

Other complaints include:
  • A female, Guatemalan custodian employed by the Somerville Board of Education who claimed that the same supervisor told her that "she should go back to where she came from" if she wasn't happy with her job.
  • A female pre-K teacher employed by the Bound Brook (Somerset County) Board of Education who claimed that her salary increment was withheld because she "express[ed] job related concerns."
  • A female, Puerto Rican Union County Sheriff's officer who said that she was denied a sergeant promotion because of her gender and her place of origin.
  • A black, male East Windsor (Mercer County) police sergeant who claimed that he was denied a lieutenant promotion because of his race. 
  • A "volunteer associate member" with Freehold Township (Monmouth County) Independent Fire Company No. 1 who said that he was discharged because he has an unspecified disability.
It should be noted that nothing contained these complaints has been proven.

Wednesday, April 12, 2017

Burlington Prosecutor dings Mansfield Committee for Meetings Act violation

In a March 28, 2017 letter, Burlington County Assistant Prosecutor Thaddeus E. Drummond advised Mansfield Township Solicitor Michael McGee that the Township Committee's October 25, 2015 discussion of a tax compliance plan in a closed meeting "ran afoul of the prohibitions contained in the [Open Public Meetings Act].

Drummond rejected Mansfield's assertion that the tax compliance plan was eligible for private discussion because it related to "Litigation/Potential Litigation."  "The implementation of a tax compliance plan is not one of the enumerated subjects that a public body can discuss in executive session to the exclusion of the general public," he wrote.  "I conclude that the Committee violated the OPMA when it did so. . . [T]he mere fact that this Compliance Plan could potentially result in litigation at some unspecified point in the future does not warrant a contrary conclusion."

Drummond conceded that he "would be hard pressed to demonstrate to a court of competent jurisdiction that the Committee knowingly violated the OPMA."  Thus, instead of attempting to fine the Township Committee members, he opted to call on the Committee to do better in the future. "Educating public officials who may have mistakenly violated the provisions of the statute is far more effective than the imposition of nominal fines," Drummond wrote.

Saturday, April 8, 2017

Court: Volunteer fire company is subject to OPRA but municipal clerk is the company's default records custodian and municipality must pay requestor's attorney fees.

In an April 3, 2017 ruling in the case of Justin D. Lamb v. Lavallette Volunteer Fire Company, No. 1, et al, Ocean County Superior Court Assignment Judge Marlene Lynch Ford ruled that the fire company is an "instrumentality" of Lavallette Borough and therefore subject to the Open Public Records Act (OPRA) because it "has been delegated the obligation to meet the public safety and police function of firefighting."  

In response to the fire company's argument that Lamb's OPRA was not valid because it was served on the the fire company's president rather than its secretary, Judge Ford ruled that since the fire company did not designate an OPRA custodian, the Borough Clerk, who was also served with a copy of Lamb's OPRA request, "shall be primarily responsible for responding to that request." 

Judge Ford also found that Walter M. Luers of Clinton was entitled to recover his costs and attorney fees for bring this suit.  But, she ruled that the Borough of Lavallette, rather than the fire company, is responsible for the costs and fees.  "[T]he volunteer members of the fire company, to the extent that they are performing a vital governmental service, may not be held personally liable for counsel fees," Judge Ford wrote.

For other court cases regarding whether a fire company is subject to OPRA, see my January 21, 2016 article.

Bergen Judge rebuffs Paramus' demand that OPRA requestor prove citizenship.

On March 31, 2017, Bergen County Assignment Judge Bonnie J. Mizdol rejected Paramus Borough's argument that a Somerset County-based Open Public Records Act (OPRA) requestor had to supply his home address to prove that he was a citizen of New Jersey.

According to CJ Griffin, who represented records requestor Jeff Carter, Mizdol held that anyone--not just New Jersey citizens--can use OPRA to obtain government records.  Mizdol's broad ruling rendered moot the question of whether a requestor needs to prove his or her citizenship.  Mizdol is the fifth judge to rule on the citizenship issue.

According to briefs filed in the matter, Carter sought legal invoices from the Borough.  After narrowing his request in response to the Borough's claim that it was "overly broad," the Borough's attorney, Paul Kaufman of Kaufman Semeraro Liebman LLP, demanded that Carter provide his home address in order to prove that he was a New Jersey resident.  Griffin wrote that Paramus' demand "is a frustrating example of an agency placing unnecessary obstacles in the way of gaining access to very basic government records" and that if Paramus' position was accepted, "citizens of Bergen County can expect that they will have to jump through hoops and give up their right to privacy in order to gain access to government records."

According to Griffin, Justin Santagata, also of the Kaufman Semeraro Liebman, indicated that Paramus would appeal Mizdol's ruling.

Tuesday, April 4, 2017

State Police honor OPRA request and disclose Final Decision on firing of disorderly Trooper

The firing of NJ State Trooper Nicole Cusanelli was reported in the media on February 22, 2017--the same date that the Appellate Division affirmed her firing.  But, an Open Public Records Act (OPRA) request disclosed the July 1, 2015, 30-page decision by State Police Superintendent Joseph R. Fuentes that provides more detail and context regarding the May 3, 2009 incident that gave rise to Cusanelli's termination.  Cusanelli was convicted of disorderly conduct but acquitted of driving under the influence and resisting arrest.  She ultimately was fined $300 for the disorderly conduct charge.

More important than the content of the decision is the fact that such decisions are disclosable under OPRA.  Police internal affairs matters are typically considered exempt from disclosure. 

Monday, April 3, 2017

We're going into executive session now and we're not going to tell you what we'll be talking about.

Before going into closed (i.e. private or executive) session, public bodies are required by N.J.S.A. 10:4-13 to pass a resolution in public that announces the "general nature of the subject to be discussed" during closed session and "as precisely as possible, the time when and the circumstances under which the discussion conducted in closed session of the public body can be disclosed to the public."  One of the most common violations of Open Public Meetings Act (OPMA) is for public bodies to exclude citizens and taxpayers from their meetings without providing the public with a real sense of the topics that are going to be privately discussed.

As an example, consider the Bloomsbury Board of Education (Hunterdon County).  The school board's closed session resolutions passed on October 11, 2016, November 8, 2016, January 10, 2017, February 14, 2017 all identically state:
Motion by [member], seconded by [member], that be it

RESOLVED, that the Board of Education adjourn to executive session at [hour] pm to
discuss Student, Personnel and Legal issues.

Motion carried unanimous voice vote.
This is improper because the phrase "student, personnel and legal issues" is so general that it does not give the public any real sense of what topics the Board is going to privately discuss.  Nearly any topic imaginable can fit within this vague description. To paraphrase the supreme court of another state, by describing the reasons for going into executive session so broadly, the school board "has said nothing. It might has well have stated to the audience, ‘Ladies and gentlemen, we are going into executive session,’ and stopped there.” Hinds County Board of Supervisors v. Common Cause of Mississippi, 551 So.2d 107, 114 (MS 1989).  (The motion is also improper because it makes absolutely no attempt to satisfy the requirement of N.J.S.A. 10:4-13(b).)

So, how much detail does N.J.S.A. 10:4-13(a) require the Board to publicly disclose in its nonpublic meetings motions or resolutions? Controlling is the Appellate Division's opinion in McGovern v. Rutgers, 418 N.J. Super. 458 (App. Div. 2011) which was mostly reversed by the Supreme Court at 211 N.J. 94 (2012). In part of its opinion that was not reversed, the Appellate Division upheld the ruling in Council of New Jersey State College Locals v. Trenton State College Board, 284 N.J. Super. 108, 114 (Law Div.1994) that public bodies must give the public "as much information [regarding the nonpublic meeting topics] as is consistent with full public knowledge without doing any harm to the public interest." (emphasis supplied) For example, "the general nature of the subject to be discussed should not be set forth as 'litigation' but, rather, as 'litigation-A vs. B.'" Id. at 114, quoting 34 New Jersey Practice, Local Government Law § 141, at 174 (Michael A. Pane) (2d ed. 1993).  (For a more complete explanation, see the letter brief filed in New Jersey Foundation for Open Government, Inc. v. Spotswood Board of Education, Docket No. MID-L-4615-16.)

Unfortunately, the minutes of the Bloomsbury board's October 11, 2016, November 8, 2016, January 10, 2017, February 14, 2017 closed session minutes are so heavily redacted that it's difficult to tell what topics were discussed and the privilege log that accompanied the minutes is not at all helpful.  Still, we can tell, for example, that a feasibility study was discussed at the January 10, 2017 closed meeting and that the 2017 special school election was discussed at the closed meeting held on February 14, 2017.  At a minimum, these topics should have been reflected in the Board's corresponding closed session resolutions.

I have sent a link to this blog article to the members of the school board and Board Attorney Jeff Caccese.

Thursday, March 30, 2017

Appellate Court: County correctly redacted home addresses, e-mail addresses and telephone numbers from OPRA requests.

In an unpublished decision issued today, a two-judge panel of New Jersey Superior Court, Appellate Division affirmed a trial court's ruling that Somerset County was justified in redacting the home addresses, e-mail addresses and telephone numbers from fifty-four Open Public Records Act (OPRA) requests the County had received in early 2015.

In the case, Jesse Wolosky v. Somerset County, et al, Wolosky sought, among other records, "each OPRA request received by the County from persons other than [Wolosky] from February 15, 2015 to [May 18, 2015]."  The County's records custodian located fifty-four OPRA requests that fit within the scope of Wolosky's request but excised the requestors' home addresses, e-mail addresses and phone numbers before disclosing them to Wolosky.   The County claimed that the redactions were necessary "to safeguard from public access a citizen's personal information when disclosure of the information would violate the citizen's reasonable expectation of privacy."

The appellate panel agreed with the County's position holding that Wolosky does not have a right under OPRA or the common law to access the email and home addresses of persons who submitted OPRA requests to the County.

Wednesday, March 29, 2017

Hunterdon judge orders disclosure of police dash-cam video, denies OPRA requestor's attorney fees.

In a December 2, 2016 order, Assignment Judge Yolanda Ciccone ruled that Readington Township (Hunterdon County) must provide the Trentonian newspaper with a patrol car's dash-cam video of the August 26, 2016 arrest of Scotch Plains Police Officer Stephanie Roggina.  According to media reports, Roggina was arrested for drunk driving after she struck a guardrail while attempting to elude police. She reportedly had only been on the job since June 2016.

Judge Ciccone noted that there are presently two conflicting, published Appellate Division decisions--North Jersey Media Group, Inc. v. Township of Lyndhurst and John Paff v. Ocean County Prosecutor's Office--regarding disclosure of police dash-cam videos.  When such conflicts exist, court rules allow a judge to decide which decision to follow and Judge Ciccone found that the Paff v. Ocean County case was "in line with the Legislature's intent in drafting OPRA."

On October 27, 2016, Ciccone's counterpart in Middlesex County--Assignment Judge Travis L. Francis--similarly elected to follow the Paff v. Ocean County case in a case against Old Bridge Township in which the OPRA requestor sought a dash-cam video of the former Carteret Police Director's drunk driving arrest.

Ciccone ruled, however, that Readington was not required to pay the the Trentonian's attorneys fees because "because [Readington's] refusal to submit the footage was based in reliance on the currently good North Jersey Media Group decision." 

The lawsuit, Digital First Media v. Township of Readington, et al, Docket No. HNT-L-427-16 was filed by Hackensack attorney C.J. Griffin on September 30, 2016. 

According to Griffin, Readington and the Hunterdon County Prosecutor's office, which was also named as a defendant in the case, appealed Judge Ciccone's order. The release the video has been stayed until after the Supreme Court resolves both the North Jersey Media Group, Inc. v. Township of Lyndhurst and Paff v. Ocean County Prosecutor's Office cases.  Griffin said that she cross-appealed from the part of the order that denied attorney's fees.

Sunday, March 12, 2017

Prosecutor: Library Board meeting violated the Meetings Act

In a March 6, 2017 letter, the Union County Prosecutor's Office told the Berkeley Heights (Union County) Library Board of Trustees that it violated the Open Public Meetings Act (OPMA) by discussing contract negotiations during a nonpublic (i.e closed or executive) session with the other party to the contract in attendance.

N.J.S.A. 10:4-12(b)(7) expressly permits contract negotiations to be discussed outside of public view to prevent the other party to the contract from learning the public body's strategy.  But, when the other party participates in the discussion, tthe only ones being kept in the dark are members of the public--the precise group the OPMA intends to keep informed.

The letter, authored by Acting Assistant Prosecutor Shawn P. Barnes, cites the unpublished Appellate Division opinion in Maureen Nevin, et al v. Asbury Park City Council and said that the case was "applicable and controlling in this case."  Nevin sits on the New Jersey Foundation for Open Government's (NJFOG) Board of Directors as the representative of the New Jersey Chapter of the Society of Professional Journalists.

Friday, March 10, 2017

Bergen judge rebuffs Teaneck's bid to bar "abusive and excessive" OPRA requests.

Update: Judge Contillo's July 29, 2017 opinion which, among other things, awarded Jones his attorney fees, is on-line here.
In his March 9, 2017 opinion, Bergen County Superior Court Judge Robert P. Contillo rejected Teaneck Township's attempt to bar future Open Public Records Act (OPRA) requests from a man who made 380 requests in a two-month period.  The judge also denied Teaneck's bid to require the man to pay "extraordinary handling fees" and to relieve it from processing those requests.

According to the opinion, Elie C. Jones filed "an avalanche" of OPRA requests soon after the Township rejected a $10,000 settlement demand Jones had made to resolve his lawsuit against a Teaneck law enforcement officer.  Judge Contillo noted that under the circumstances, "it is easy to under the Township's frustration."  Still, he found that "OPRA requests--even those designed and timed to bludgeon a municipality into a financial settlement--cause no immediate or irreparable harm."  A showing of such harm is required before an injunction can be issued.

The judge noted that Teaneck is "not powerless" and that OPRA provides remedies for public entities facing an enormous number of requests.  One remedy contained in N.J.S.A. 47:1A-5(g) permits the Township to deny requests that "substantially disrupt agency operations" if the requestor refuses the Township's attempts to reach a solution that would accommodate both it and the requestor.  For example, the Township could have requested that Jones prioritize his requests and assess a special service charge for the extraordinary amount of time it would take to fulfill them. Since the lawsuit was filed, Jones had abandoned 290 of his 380 requests, which Judge Contillo found undermined the Township's argument for an injunction.

Judge Contillo also denied the Township's request that the court "assess a special handling fee" because "it is not for the court to assess the fee."  Rather, OPRA requires the Township to assess the fee leaving the requestor with the option to pay the fee, challenge it in court or abandon the request.

The court also wrote that if Township officials felt that Jones' conduct constituted harassment, they could proceed against him under both the civil and criminal code. 

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

Thursday, February 23, 2017

Judge differs with Warren County regarding disclosure of a civil complaint alleging sexual assault of minor.

On January 20, 2017, Warren County records custodian Art Charlton responded to an Open Public Records Act (OPRA) request for, among other records, a copy of the civil complaint filed C.C. v. County of Warren, Docket No. WRN-L-17-15.  In this case, which is still pending, a teenage boy alleged that a Warren County official sexually molested him on four occasions in 1988 and 1989 during transports between the Warren County Juvenile Detention Facility and other locations.  C.C. was between 14 and 16 at the time.

In his letter, Charlton explained that he redacted from the requested records the "identity of the accused" official.  Typical is the redaction applied to paragraph 17 of the complaint: "Each of the four (4) instances of abuse occurred when John Doe 1, the then Warren County [redacted], volunteered and was authorized by County officials to personally transport C.C. to or from County facilities."  It was Charlton's position that the public wasn't permitted to know the position that the accused pedophile held with the County.  The twenty-three page, redacted complaint is on-line here.

Charlton's primary justification for the redactions was the Child Sexual Abuse Act, N.J.S.A. 2A:61B-1(f) which states that "The name, address, and identity of a victim or a defendant shall not appear on the complaint or any other public record as defined in [the OPRA]. In their place initials or a fictitious name shall appear."  Thus, Charlton asserted, the position held by the alleged pedophile needed to be suppressed to prevent the public from identifying him.

Given extensive media coverage of pedophilia accusations regarding a particular Warren County official, it was not hard for me to guess the identity of the defendant and which office he held.  Yet, I wanted to be able to name the defendant in my writings about this complaint without having to worry that I might be defaming someone.

Accordingly, on February 20, 2017, Libertarians for Transparent Government, a non-profit for which I serve as executive director, filed a New Jersey Judiciary Request Form with the Warren County Civil Division Manager's office.  The request sought to determine whether the state court system would agree or disagree with Charlton's position that the accused pedophile's County position was permissibly redacted from the complaint.  In order to simplify the matter, the request sought only the 4th, 5th and 6th pages of the civil complaint.  Those pages were heavily redacted and would, if disclosed in unredacted form, disclose the position held by the defendant.

In her February 22, 2017 letter in response to my request, Assignment Judge Yolanda Ciccone disagreed with Charlton's assessment.  She wrote that while Court Rule 1:38 (the rule that governs disclosure of court records) "does exempt from disclosure of numerous documents relating to victims of abuse, it does not equally protect the identities of alleged perpetrators."  She further explained that "the purpose of R.1:38 is to encourage transparency between government and its citizens." 

Accompanying Judge Ciccone's letter were unredacted versions of the 4th, 5th and 6th pages of the civil complaint.  They clearly show that Defendant John Doe 1 was "the then Warren County Sheriff."  Public records and media accounts confirm that the Sheriff of Warren County in 1988 and 1989 was Edward Bullock, who according to a November 18, 2015 news article, passed away on November 16, 2015.

Bridgeton appears to misuse closed sessions to keep its Council squabbles behind closed doors.

The minutes of the Bridgeton (Cumberland County) City Council's eight most recent nonpublic meetings are on-line here.  These minutes are for the meetings, known as executive or closed sessions, where the City Council went behind closed doors to discuss one or more of the nine topics that the Open Public Meetings Act (OPMA) allows to be discussed without the public being present.  One of those nine exceptions, known as the "personnel exception," allows the City Council to privately discuss the hiring, firing, performance, compensation, and discipline of public employees.  According to a 1991 New Jersey Supreme Court decision, closed-door meetings are necessary to ensure the Council's "free and uninhibited discussion" regarding personnel matters.

The minutes of the Council's September 6, 2016 closed meeting, however, show that only one "personnel" matter was discussed.  The minutes recite: "Councilman Spence inquired about the meaning of a remark made by Councilman Surrency at last Work Session.  Councilman Surrency responded that there was no meaning."  This discussion, which on its face does not involve the hiring, firing or discipline of specific a public employee, does not appear to qualify for a closed-door meeting under the OPMA's personnel exception.  Rather, it appears to be a skirmish between two Council members regarding a remark made during a previous public meeting. 

Similarly, the August 16, 2016 closed minutes disclose that Councilman Zapolski distributed documents "that refuted claims made by Councilman Surrency" during a previous meeting.  Again, this appears to be more of a scuffle between two Council members than a confidential discussion regarding a specific public employee.

The chief goal of the OPMA is to ensure that citizens get to witness all phases of governmental decision-making except when an overriding need for confidentiality authorizes a closed-door meeting.  The exceptions to open public meetings are specific and limited and the courts have ruled that those exceptions must be strictly construed against closure of meetings to the public.  While it is understandable that the City Council may want to avoid putting its internal strife on public display, its decision to close the August 16 and September 6 meetings to the public does not appear to be justified under the law.

Also suspect--but for a different reason--is the Council's December 20, 2016 closed meeting for which the substantive part of the minutes states, in its entirety:  "There was a discussion regarding municipal court matters."  This discussion, which was alleged to be a "contract" matter, may or may not have qualified for private discussion.  It is impossible to tell because the minutes themselves are not "reasonably comprehensible" as required by the OPMA's N.J.S.A. 10:4-14.

Tuesday, February 14, 2017

Sponsor promises to amend attorney fee-shifting language in pending OPRA bill.

On February 13, 2017, the Assembly State and Local Government Committee favorably recommended Assembly Bill No. 4532 which would, in its current form, weaken the Open Public Records Act (OPRA) by relieving government agencies from paying a successful OPRA plaintiff's attorney fees if "the court or [Government Records Council] finds that the decision to deny access was reasonable and made in good faith after due diligence."

OPRA's mandatory fee-shifting provision is one of the law's most important features.  According to a 2005 Appellate Division case, without fee-shifting, "the ordinary citizen would be waging a quixotic battle against a public entity vested with almost inexhaustible resources. By making the custodian of the government record responsible for the payment of counsel fees to a prevailing requestor, the Legislature intended to even the fight." 

But, during yesterday's hearing, Committee Chairman Troy Singleton remarked that he was assured by Assemblyman Wayne P. DeAngelo, one of the A-4532's three current sponsors, that the bill's proposed limitation on attorney fee-shifting was intended to apply only to lawsuits where the "personal government records"--a new category of exempted records created by the bill--were at issue.  The bill defines this new category as "consist[ing] of or pertain[ing] solely to a pet or home alarm system permit, license, or registration." 

Earlier this afternoon, I spoke with Elizabeth A. Meyers, DeAngelo's chief of staff, who confirmed that it was never DeAngelo's intention to so dramatically alter OPRA's fee-shifting structure.  Meyers said that DeAngelo has instructed the Office of Legislative Services to amend the bill to make it clear that the bill's limitation on fee-shifting applied onto to court cases where "personal government records" (i.e. pet and home alarm licenses) were being sought.  She said that the curative language, which should be available on-line within a few days, would be offered as an amendment when the bill reaches the Assembly floor.

Monday, February 13, 2017

Middlesex court continues to "disappear" civil cases down the memory hole.

Update 02/17/2017:   I received the following response from the court:

 February 16, 2017

Dear Mr. Paff,

Thank you for bringing this case to our attention.  I have reviewed the case file and contents and determined that the case was impounded improperly which has been rectified.  I understand your concern and assure you that we are working diligently to prevent future errors of this nature.  Contact me if you have any questions.

Ian Ratzlaff
Civil Division Manager
Phone:  (732) 519-3677
Fax:  (732) 519-3708

----- original article ----

In Nineteen Eighty-Four, George Orwell described a slot he called a "memory hole" where public records could be disposed of so completely that the events recited in those records could be claimed to have never occurred.  The manner in which the Middlesex County Superior Court's Civil Division "seals" court files is reminiscent of Orwell's dystopia.

No one disputes that certain records within a court's file (those that identify a sexually abused child, for example) should be excluded from the public record. But the fact that such a record may be contained within a court file does not justify suppression of the entire file and certainly doesn't allow the court to wipe the file's very existence from the public docket.  This is especially true when the defendant in the case is a taxpayer-funded, public agency. 

But, for the second time in as many years, I have found that the Middlesex court has suppressed a pending court case involving a government agency so thoroughly that no indication of the case's existence can be found on the public docket.

Following is my e-mail the the Middlesex Court's Ombudsman.  I will post on this blog any responses that I receive.
February 13, 2017

Luis M. Hernandez, Ombudsman
Middlesex County Superior Court
Via e-mail only to

RE: Improper "sealing" of court dockets

Dear Mr. Hernandez:

On May 3, 2015, I wrote an article entitled "Sealing of OPRA case turns out to be in error."  The article concerned a clerical error in the Civil Division Manager's office to "seal" an Open Public Records Act (OPRA) case thus making the case "invisible" to anyone searching for it on the Automated Case Management System (ACMS).  As noted in the article, I specifically asked the Civil Division Manager's office for "procedural safeguards to prevent the improper sealing of future cases." 

Today, I searched the ACMS for a civil case captioned Child M. v. Montville Board of Education, Docket No. MID-L-6011-12 and the ACMS reported that the case was sealed. (Note that no information other than "Case Sealed" is available.) This is a case where a minor student accused the Montville school district of allowing a male teacher who had been accused of sexual misconduct toward students to resign.  His resignation permitted the teacher to be rehired by another school where he allegedly continued in his misconduct to the student-plaintiff's detriment.  The Montville school district's dismissal from the suit was reversed by an August 25, 2016 Appellate Division decision which remanded the matter back to the Middlesex County trial court.  (For background, see the August 25, 2016 Daily Record article entitled "Court: Montville school officials had duty to report 'touchy-feely' teacher.")

While I understand that certain records within the case need to be sealed (e.g. those that identify the child victim, etc.), there is no legitimate reason to seal the entire file and deprive the public from even knowing about the lawsuit's existence.  At the very least, a person who searches the ACMS for "Montville Board of Education" should be able to identify that this case exists.  As it is, the case has simply "disappeared" from the system.

I ask that you investigate this matter.  If you find that the sealing of the entire case file was a clerical error, it is not enough for you to simply have this specific instance of the error corrected.  Given that this the second "disappeared" Middlesex case I have encountered in less than two years, it is very likely that there are others that I do not (and, indeed, cannot) know about.  The absence from the public record of these cases' very existence is troubling.

I look forward to hearing from you regarding this matter.

Very truly yours,