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.

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
ian.ratzlaff@njcourts.gov
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 MiddlesexHelp.mailbox@njcourts.gov

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,

Monday, February 6, 2017

Judge rules that Willingboro violated OPRA by failing to disclose draft, unsigned lawsuit release.

On January 31, 2017, Burlington County Assignment Judge Ronald E. Bookbinder issued a twenty-eight page opinion holding that a proposed release exchanged between a lawsuit's parties was disclosable under the Open Public Records Act (OPRA).  The Township of Willingboro, the defendant in the lawsuit, had argued that the unsigned release and its cover letter were exempt as attorney-client privileged, as advisory, consultative and deliberative and as communication between a public entity and its insurer.  Bookbinder rejected all three defenses.

The May 20, 2016 cover letter and draft settlement agreement that Willingboro had refused to disclose in response to the OPRA request were ultimately disclosed in accordance with Judge Bookbinder's ruling.

In addition to Bookbinder, judges in Mercer, Hudson, Passaic and Essex Counties have considered the issue of whether draft, unsigned releases and settlement agreements are disclosable under OPRA.  All judges have ruled that they are except for Mercer County Assignment Judge Mary C. Jacobson.

The lawsuit plaintiff, Libertarians for Transparent Government, was represented by Walter M. Luers of Clinton.

Public spending disclosure rule inches closer to enactment.

During the summer of 2014, Parsippany-Troy Hills Township (Morris County) hired a consulting firm that was at least partially owned by the Township's recently retired Chief Financial Officer (CFO) and then refused to tell the public how much taxpayer money the consulting firm was to receive under the contract.

While the amount to be paid was listed in the contract itself, Township Clerk Yancy Wazirmas refused to provide a copy of the contract in response to my Open Public Records Act (OPRA) request because it "hasn’t been signed by the Administration (meaning Mayor James Barberio) and given to the Clerk’s Office yet.  That could take up to 30 days."  Further, I was denied access to the unsigned contract because it was considered "advisory, consultative and deliberative." And finally, neither the resolution that authorized the contract nor the Certificate of Available Funds (a certification that the CFO must provide showing that there are sufficient funds in a budget line to cover the contract's cost) disclosed the amount of the contract.

I felt strongly that public bodies, when they vote to approve a contract, should be required to create a publicly accessible document that discloses the maximum amount of public money that could be paid out under that contract.  Accordingly, on August 1, 2014, I (in my role as Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project) submitted a formal Petition for Rulemaking to the the Division of Local Government Services (DLGS) within the Department of Community Affairs seeking a rule amendment that would "require all Certifications of Available Funds to explicitly set forth the maximum dollar amount of the contract to be awarded."

The DLGS agreed with my proposal and published a formal proposed rule amendment in the January 20, 2015 New Jersey Register.  Unfortunately, it failed to move forward on the rule within one year, causing it to expire.  So, on March 16, 2016, I submitted a second, similar petition which is moving through the process.  In a formal proposal published in the February 6, 2017 New Jersey Register, the DLGS, after having reviewed a first round of public comments, has fine-tuned the proposed rule and has asked for more public comments prior to March 8, 2017.  After reviewing any comments received, I am hopeful that the rule will pass thus enabling taxpayers to better learn how their money is being spent.

Friday, February 3, 2017

GRC calls Kean U.'s 18 extensions seeking a total of 170 days to respond to an OPRA "clearly excessive."

The Government Records Council (GRC) is usually very accommodating to custodians who do not grant or deny records within the Open Public Record Act's (OPRA) seven business-day response period, as long as the custodian seeks an extension within that seven business-day period. 

So, if a custodian, on the sixth business day after an OPRA request is received, requests an extension to reasonably close, certain date, the GRC will typically find that the custodian complied with the seven business-day requirement. Unfortunately, some public agencies, the Division of State Police, for example, frequently (if not always) request extensions thereby reducing OPRA's seven business-day response to a near nullity.

There are, however, limits to the number and duration of OPRA extensions.  In the GRC's December 13, 2016 decision in Luis Rodriguez v. Kean University, the Council's executive director wrote that "[a]lthough extensions are rooted in well-settled case law, the Council need not unquestioningly find valid every request for an extension containing a clear deadline." He also wrote that the GRC has held in the past that a "custodian could not lawfully exploit the process by repeatedly rolling over an extension once obtained."

According to the GRC's executive Director's Findings and Recommendations, the Council analyzes extension requests on what is "reasonably necessary."  In order to make that determination, the Council goes through a three-step process.  First, it looks at "complexity of the request as measured by the number of items requested, the ease in identifying and retrieving requested records, and the nature and extent of any necessary redactions."  Second, it considers the amount of time that the custodian has already had to respond to the request.  Finally, it considers any extenuating circumstances that would hinder the custodian's ability to respond.

Applying these considerations to Rodriguez's request to Kean University, the executive director found that Kean's eighteen extension requests that added up to 170 days to turn over 435 pages of material "was clearly excessive and flies in the face of OPRA's mandate to 'promptly comply' with a records request." 

Saturday, January 28, 2017

Berkeley Heights Sunshine Act

Citizens in the Township of Berkeley Heights (Union County) are collecting signatures to put the "Berkeley Heights Sunshine Act" as a referendum on the November 2017 general election ballot.  The Act will require the Township Council, Planning and Zoning Boards and other public bodies to go beyond the transparency requirements of the Open Public Meetings Act (OPMA). 

Voters in municipalities, such as Berkeley Heights, that have adopted an Optional Municipal Charter Act of 1950 (Faulkner Act) or Walsh Act form of government may initiate such legislation and force it to a public vote by collecting signatures equal in number to ten-percent of the ballots cast in the most recent election where General Assembly members were selected.  It's a useful tool that allows voters to circumvent recalcitrant and entrenched local elected officials.

Specifically, the Act will require: a) that meeting agendas are fixed and publicized on-line at least 48 hours prior to the meeting, b) that all proposed contracts, resolutions and other documents referred to in a meeting agenda also be available on-line at least 48 hours prior to the meeting, c) provide a five-minute per person public comment session near the beginning of each meeting, d) prohibit members of the public body from texting during meetings, e) require detailed resolutions that precisely set forth the topics to be discussed during closed or executive session, f) comprehensive (as opposed to the "reasonably comprehensible" standard required by the OPMA) minutes of closed or executive sessions to be posted on-line within 60 days of the meeting, g) quarterly review of closed session minutes to determine if previously redacted material can be disclosed and h) on-line posting of every meeting's audio by the fifth day after the meeting.

This is a worthwhile initiative and I urge readers to visit and "like" the Facebook page.



The Township has put a statement on its website opposing the "Berkeley Heights Sunshine Act" and accusing the citizens who are supporting the Act of "promulgating . . . inaccurate and at times scurrilous information" regarding the Township's present transparency efforts.

Friday, January 27, 2017

Appellate Division rules that OPRA requests are OPRAable.

In a published decision issued today (01/27/17), a three-judge panel of the New Jersey Superior Court, Appellate Division ruled that Open Public Records Act (OPRA) requests filed with a government agency are subject to disclosure unless a) personal privacy concerns outweigh the requestor's interest in disclosure or b) disclosure would give an advantage to someone, e.g. another news agency, who is competing with the OPRA requestor.

The prevailing attorney was Walter M. Luers of Clinton.