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.