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On August 28, 2017, two judges out a three-judge Appellate Division panel issued a non-precedential opinion granting a Lakewood resident access to a police dash-cam video of an August 31, 2013 traffic stop that resulted in the arrest and indictment of a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

RE: Open Public Records Act

Dear First Assistant Factor:

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

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

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

Very truly yours,

Tuesday, August 8, 2017

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


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

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