Tuesday, June 19, 2018

Names of fired public employees, identified only by their employee numbers, can be obtained through OPRA.

The minutes of some public agencies, often school districts, refer to agency employees by number rather than by name.  For example, the Perth Amboy (Middlesex County) school board's November 2, 2017 meeting minutes state that a majority of the Board (Board members Obdulia Gonzalez and Anton Massopust voted "no") voted to terminate "employee #XXX671" and "employee #XXX985."  This makes it difficult for the public to know which employees have been fired.  (Interestingly, the agenda of the same meeting stated that the Board had planned on approving "a settlement agreement and release agreement" for the same two employees.)

Section 10 of the Open Public Records Act (OPRA), fortunately, requires that "an individual’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."  This means that in most cases a person can obtain the name of an employee by making an OPRA request even if the agency tries to obscure the employee's identity in its meeting minutes.

In this case, my non-profit submitted an OPRA request seeking the following:
1. For employee #XXX671, his or her "name, title, position, salary, length of service, date of separation and the reason therefor." See N.J.S.A. 47:1A-10.
2. For employee #XXX985, his or her "name, title, position, salary, length of service, date of separation and the reason therefor." See N.J.S.A. 47:1A-10.
The custodian's response, which is on-line here, contains the full names, ending salaries and years served by the School Security Officer and Custodian who were "terminated for cause." 

Monday, June 4, 2018

Appeals court rules that Union County jail's inmate suicide and overdose fatality incident reports are disclosable under OPRA.

On June 4, 2018, a two-judge panel of the New Jersey Superior Court, Appellate Division affirmed a Union County trial judge's January 3, 2017 ruling that incident reports of Union County Correctional Facility inmate deaths caused by suicides and drug overdoses are, subject to appropriate redactions, subject to disclosure under the Open Public Records Act (OPRA).

Union County based its denial of lawyer Conrad J. Benedetto's OPRA request on an Administrative Code provision that designates inmates' medical and psychiatric records as confidential and exempt from disclosure.  The trial judge, in a January 3, 2017 decision, disagreed with the County's position because Benedetto was seeking incident reports not medical records and ordered the County to disclose the records after redacting personal identifiers.

The County asked the trial judge to reconsider, arguing for the first time that the County did not keep logs or records of inmate deaths and that such information was only kept in each inmate's medical records.  Notably, the County did not offer an affidavit or certification supporting this claim and the judge expressed disbelief that the County did not maintain records related to inmates who died in jail.  The County appealed.

The Appellate Division judges also faulted the County for not submitting an affidavit or certification from a jail official supporting its claims and for instead asserting unsupported facts within its legal brief.  The panel ruled that assertions of fact not contained in a sworn affidavit or certification are not considered evidence and that the trial judge correctly rejected them.  Accordingly, the panel affirmed the trial court's ruling.

The Appellate Division panel's opinion is on-line here.  Benedetto was represented by Walter M. Luers of Clinton.  The County was represented by Assistant Union County Counsel April C. Bauknight.