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 East 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.