Tuesday, July 31, 2018

Lawsuit seeks CDR filed against Bridgeton police detective.

Update: 11/03/18: In an October 30, 2018 order, Assignment Judge Benjamin C. Telsey ordered Bridgeton to disclose the CDR-1 Summons and Complaint against Detective Acevedo and to pay my non-profit's attorneys fees and court costs.
On July 20, 2018, Libertarians for Transparent Government, a New Jersey Non-Profit Corporation (LFTG) (for which I serve as executive director) filed a lawsuit against the City of Bridgeton (Cumberland County) due to its refusal to produce a CDR--a summons-complaint form that alleges a criminal or disorderly persons offense--filed against one of its police detectives.

This history of the matter is as follows. On October 25, 2017, LFTG filed an Open Public Records Act (OPRA) request seeking, among other records, a CDR that I learned had been filed in 2017 against Detective Christian Acevedo by New Jersey State Troopers operating out of the Woodstown Barracks.  LFTG stated in its OPRA request that it was making the request to Bridgeton instead of the State Police because "the State Police are notoriously slow in responding to OPRA requests."

In its November 6, 2017 response, Bridgeton claimed that the CDR was "not generated through this jurisdiction" and that it was exempt because there was an "ongoing investigation."  On November 13, 2017, LFTG reached out to Bridgeton's attorney, Rebecca J. Bertram, because the City's November 6th response did not comply with OPRA.  First, LFTG pointed out, the fact that another police agency might have generated the CDR does not matter if Bridgeton actually possesses a copy of that CDR.  OPRA covers records that are "received" by a government agency, not just those that are "made" by the agency.  Second, LFTG argued that OPRA's "ongoing investigation" exception embodied within N.J.S.A. 47:1A-3 does not apply to records that were "open for public inspection, examination or copying before the investigation commenced."  Accordingly, if Bridgeton had a copy of the CDR and if the CDR was publicly available before Bridgeton started its investigation into Acevedo (most CDRs are considered public at the moment they are filed in a court), then the CDR ought to have disclosed in response to LFTG's OPRA request.

On December 6, 2017, Ms. Bertram drafted, but admittedly did not send, a response stating that the City relied upon former Assignment Judge Georgia M. Curio's December 2016 order in Heather Grieco v. Regional Board of Education, Docket No. SLM-L-162-16.  In that case, Judge Curio ruled that a criminal complaint filed against a school board employee became exempt as a "personnel record" when it was placed in the employee's personnel file.  Unfortunately, no appeal was taken from Judge Curio's ruling.    Bertram's response, however, expressly admitted that "[t]he City does have a copy of a CDR filed against Officer Acevedo and is held by the Internal Affairs Department of the Bridgeton Police Department."

In his legal brief, Clinton-based attorney Walter M. Luers, who is representing LFTG in this action, argued that the CDR, which was filed prior to the Internal Affairs investigation's inception, "did not become retroactively confidential."  Luers also argued that CDRs are filed with a court and "enjoy a strong presumption of public access pursuant to Court Rule 1:38."

No hearing has yet been scheduled.  The matter will very likely be heard by Assignment Judge Benjamin C. Telsey within the next several weeks.  Those who are interested in following the case on the on-line ACMS system should reference Libertarians for Transparent Government v. City of Bridgeton, et al, Docket No. CUM-L-504-18.

Thursday, July 26, 2018

Judge: OPRA requires disclosure of golf club's bid to provide recreational amenities at Liberty State Park.

On July 25, 2018, Mercer County Assignment Judge Mary C. Jacobson ordered the New Jersey Department of Environmental Protection (NJDEP) to disclose the sole bid that it received in response to its Request for Proposal (RFP) for recreational amenities in the Caven Point area of Liberty State Park in Jersey City.

The NJDEP and the bidder, Liberty National Golf Club, which operates a golf course adjacent to the Caven Point area, both opposed public disclosure of the bid citing the Open Public Records Acts' (OPRA) competitive advantage exception and arguing that the bid contained confidential and proprietary information.

The plaintiff in the OPRA case, Steve Ramshur, argued that the RFP itself warned bidders that their submissions would be public records and that no competitive disadvantage would result from disclosure because the bidding period had already been closed at the time the OPRA request was received.  "The disclosure of a bid only benefits competitors while the bidding process is open," wrote Ramshur's attorney Walter Luers. "Limiting access to prior bids or responses actually hurts competition . . . because it reduces information that is available to other potential bidders who can perhaps offer a better deal in a future round of bidding."  The legal briefs filed by Ramshur, the NJDEP and Liberty National are on-line here

The wording of the orders suggest that Judge Jacobson will likely allow the NJDEP to continue to withhold disclosure of Liberty National's bid if an appeal is taken from her ruling.  Judge Jacobson also ordered the NJDEP to pay Ramshur's court costs and attorney fees.