NJ Open Government Notes

New Jersey Supreme Court agrees to decide whether the identity of trooper who left his or her position for "questionable associations" and "racially offensive behavior" can be withheld from the public.

noreply@blogger.com (John Paff) — Sat, 12 Oct 2019 18:08:00 +0000

Each year, the Division of State Police (NJSP) issues a public report that summarizes disciplinary cases against troopers processed through its internal affairs system. Page 13 of the 2015 report noted that an unnamed trooper was "separate[d] from employment" for "having questionable associations, engaging in racially offensive behavior and publicly discussing police patrol procedures." After reading that report on November 28, 2016, I caused Libertarians for Transparent Government, Inc. (LFTG), a non-profit that I serve as executive director, to submit an Open Public Records Act (OPRA) request for the trooper's "name, title, date of separation and reason therefor."

The NJSP denied the request claiming that internal affairs and personnel records are confidential. In February 2017, OPRA lawyer CJ Griffin filed a civil complaint on LFTG's behalf in Mercer County Superior Court that challenged the NJSP's denial. Assignment Judge Mary C. Jacobson ruled against LFTG on July 20, 2017 and a two-judge Appellate División panel affirmed Judge Jacobson's ruling on May 20, 2019. On October 10, 2019, the Supreme Court granted certification meaning that New Jersey's highest court will review the lower courts' rulings.

In my view, the public has a right to know the identities of police officers who are forced to leave their positions because of misconduct. As Griffin points out in her brief to the Supreme Court, without knowing this Trooper's identity, the public cannot determine whether this trooper was fired or allowed to resign in good standing or whether he or she has moved on to work for another police department.

As the Supreme Court observed in 2012, one of OPRA's chief purposes is to "enable[] citizens and the media [to] play a watchful role in curbing wasteful government spending and guarding against corruption and misconduct." If this purpose is to have any real meaning, the public has to be allowed to know the identity of a police officer who was separated from employment after a finding of misconduct.

Court orders Warren County municipality to disclose dashcam video of police chief's motor vehicle stop.

noreply@blogger.com (John Paff) — Tue, 01 Oct 2019 15:25:00 +0000

Update: The Township released the video shortly after this blog post was published. The video is on-line here.
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On October 1, 2019, New Jersey Superior Court Assignment Judge Yolanda Ciccone issued a court order compelling Independence Township (Warren County) to disclose "the [police] dashcam audio and video recordings of" a motor vehicle stop of Keith P. Aiello, the Township's police chief. The court order arose out of Libertarians for Transparent Government (LFTG) v. Independence Township, et al, Docket No. WRN-L-235-19 which sought disclosure of the dashcam recordings under both the Open Public Records Act (OPRA) and the common law right of access. I serve as LFTG's executive director. The case's complaint and brief are on-line here and here.

According to official documents, Independence police received a report at 2:17 a.m. on February 20, 2019 that a vehicle, which was later determined to have been driven by Chief Aiello, was "on and off the roadway," "swerving," "blew through a stop sign" and had "sideswiped a guardrail." A box on the crash report described Aiello's "apparent physical status" at the time of the incident as "alcohol use." (See paragraph 17 of the complaint, linked above.) No field sobriety tests were administered and no summonses were issued.

On April 19, 2019, LFTG submitted its OPRA request for records, including the dashcam recordings, relating to the incident. The Township provided LFTG with some of the requested records but, in its April 29, 2019 response, claimed that the dashcam recordings were exempt as a "criminal investigatory record."

Judge Ciccone has not yet issued a written decision explaining the legal basis for her ruling. In addition to ordering the Township to produce the video, she also ordered it to pay LFTG's court costs and attorney fees.

LFTG is being represented by Walter M. Luers of Clinton.

Appellate Division rules today on OPRA request for fire commissioners' e-mails.

noreply@blogger.com (John Paff) — Fri, 15 Mar 2019 15:50:00 +0000

The takeaways from today's two-judge Appellate Division panel's Open Public Records Act (OPRA) opinion in Jeff Carter v. Franklin Fire District No. 1 are:

1. If you're an OPRA requestor who wants e-mails in their native format, you need to specifically request them in their native or original format. Don't conflate the terms "medium" and "format." A record's "medium" is the manner in which a document is produced, such as in paper, as a PDF document or as a video file. Its "format . . . relates to the file structure of the original application that created the document." In this case, the requestor did not specify that he sought e-mails in their "native" or "original" format. Rather, he asked only for "electronic copies of all e-mails." The panel held that the custodian complied with his request when it provided him with the e-mails as PDF files.

2. If you're a records custodian, it isn't permissible for you to certify that you asked the elected officials to search their own personal e-mail accounts for responsive e-mails and then produce a set of e-mails that are allegedly fully responsive to the OPRA request. Such a certification is not based on the custodian's own personal knowledge and is therefore not allowed under OPRA. Unless you conduct the searches yourself or supervise those searches in a meaningful way, there is no way for the requestor to know whether the records you produce constitute a complete set of the responsive records that exist.

Facing lawsuit, Rutgers coughs up its separation agreement with former Athletic Director.

noreply@blogger.com (John Paff) — Wed, 21 Nov 2018 18:57:00 +0000

In his August 2, 2018 article, "Why did Rutgers pay fired AD Julie Hermann $500K more than she was owed?" Star-Ledger reporter Keith Sargeant wrote about Rutgers' refusal to provide him with the university's separation agreement with former Athletic Director Julie Hermann. After reading the article, I had my non-profit submit an Open Public Records Act (OPRA) request for the separation agreement and then sued when Rutgers denied the request.

On September 10, 2018, Rutgers denied my non-profit access to Hermann's separation agreement for the same reason that Sargeant's request was denied: The agreement is "a personnel record, and not subject to disclosure under OPRA," Rutgers claimed. With CJ Griffin of Hackensack as its attorney, my non-profit filed a lawsuit against Rutgers and its records custodian on September 24, 2018. The lawsuit and exhibits are here, the brief is here and Griffin's certification and exhibits are here.

After being served with the lawsuit, Rutgers decided to disclose the separation agreement and pay Griffin $6,000 in attorney fees. The separation agreement is on-line here. It called for Hermann to receive payments of $175,000 as "retention compensation," $105,000 as "incentive compensation," $31,000 as an "automobile stipend," $125,000 as a "lump sum payment" and $25,000 as "attorney fees." The agreement also called for Hermann to keep "the existence and terms of [the separation] agreement . . . strictly confidential" and provided that Hermann would have to pay Rutgers $50,000 in liquidated damages if she breached this confidentiality provision.

OPRA suit seeks disclosure of court filings that resulted in reversal of former Hammonton school guidance supervisor's lewdness conviction.

noreply@blogger.com (John Paff) — Thu, 15 Nov 2018 18:38:00 +0000

If a person submits an Open Public Records Act (OPRA) request to a county prosecutor for records that the prosecutor filed in court, it is generally accepted that those records must be disclosed provided that the court case is not sealed. Yet, on November 5, 2018 the non-profit I serve as executive director filed suit against the Atlantic County Prosecutor's Office (ACPO) for refusing to disclose briefs, certifications and trial court transcripts filed in a former Hammonton school guidance supervisor's court challenge to his conviction for masturbating in public. The case against the ACPO is captioned Libertarians for Transparent Government v. Atlantic County Prosecutor's Office, Docket No. ATL-L-2684-18 and is on-line here.

By way of background, according to a May 24, 2017 Press of Atlantic City article, Michael P. Ryan was convicted in Absecon Municipal Court of masturbating in his car in the parking lot of a Hammonton laundromat on September 11, 2015 (Summons/Complaint No. 0113-S-2015-000398). Ryan, who had worked as a guidance supervisor for the Hammonton Public School District, was suspended from his position when he was charged with lewdness--a disorderly persons offense--and was fired when he was convicted of that offense.

On May 18, 2017, Atlantic County Superior Court Judge Donna A. Taylor affirmed Ryan's municipal court conviction. Details of the facts leading up to the charge are set forth in Judge Taylor's May 18, 2017, 13-page written decision. Judge Taylor affirmed the $506 fine, $158 costs and assessments and one-year term of probation that the municipal court imposed.

Also included in Judge Taylor's decision are details relating to another, separate lewdness charge (Summons/Complaint No. 0113-S-2016-000097) arising out of an September 20, 2015 incident where Atlantic County Prosecutor's Office Detective Michael Peterson charged Ryan with masturbating in his car in the Hammonton Discount Liquors parking lot and an Obstruction of the Administration of Law offense (Summons/Complaint No. 0113-S-2016-000098) that Peterson brought against Ryan for allegedly fleeing from the scene of the September 11, 2015 incident at the laundromat. The municipal court found Ryan not guilty of these two charges and convicted him only of the lewdness charge that arose out of the September 11, 2015 laundromat allegation.

According to Judge Taylor's decision, the lewdness charge arising out of the September 11, 2015 incident at the laundromat was brought by Eastampton Township Police Officer Michael Musser and his conviction on that charge relied very heavily on Musser's testimony. Musser said that he, while off-duty, went to the laundromat to do some laundry when he witnessed a man, who he later identified as Ryan, masturbating in his car. After Musser identified himself as a police officer, the man allegedly drove away. Musser said that he recognized Ryan driving the same car a couple of weeks later in a grocery store parking lot and took a photograph of Ryan's license plate. Musser said that he followed Ryan's vehicle but that Ryan ran stop signs to evade him.

At trial, Ryan's attorney argued that Musser did not report the September 11, 2015 when it occurred and could not recall the date or day of the week when it allegedly occurred. According to Judge Taylor's decision, Ryan's attorney argued that "Musser's lack of reporting the initial incident should raise a serious question as to his attentiveness during the incident."

At some point after Judge Taylor affirmed his conviction, Ryan and his attorney became aware that Musser had been fired for lying to the Eastampton Police Internal Affairs Unit. (See my article, "Burlington judge upholds Eastampton cop's firing.") While Ryan's motion and brief to the Appellate Division have been suppressed by the Atlantic County Prosecutor's Office, Burlington County Judge Susan L. Claypoole's October 23, 2017 written opinion does show that Musser was aware of an Internal Affairs investigation against him on August 25, 2016 which was prior to the October 28, 2016 trial at which Musser testified against Ryan.

While Ryan's attorney's argument to the Appellate Division has not been disclosed, Ryan apparently argued that the prosecution was required by the 1963 Supreme Court decision in Brady v. Maryland to tell Ryan's attorney about Musser's untruthfulness. Such would have allowed Ryan's attorney to attack Musser's credibility during Ryan's trial and may have led to a different outcome. The prosecution's failure to so inform Ryan of Musser's credibility issues arguably deprived him of a fair trial.

Appellate Division Judge Michael J. Haas entered a December 22, 2017 order that granted Ryan's motion to remand the case back to the Superior Court and Atlantic County Superior Court Judge Bernard E. DeLury, Jr. signed a March 19, 2018 Order that "vacated the Judgment of Conviction," granted Ryan a "new trial based on a Brady violation" and remanded the matter back to the Absecon Municipal Court for a new trial. By way of a November 30, 2018 letter, Atlantic County Assistant Prosecutor Kathleen E. Robinson advised Absecon Municipal Court Judge John H. Rosenberger that "upon further review . . . the State has declined to continue the prosecution of defendant Ryan." Attached to Robinson's letter is a copy of Summons/Complaint No. 0113-S-2016-000098 marked "dismissed."

Libertarians for Transparent Government is being represented in the OPRA lawsuit by Richard M. Gutman of Montclair.

Lawsuit seeks ruling that Open Public Meetings Act violation implicates attorney fee-shifting provision of Civil Rights Act.

noreply@blogger.com (John Paff) — Sun, 04 Nov 2018 13:51:00 +0000

On Wednesday, January 9, 2019, Mercer County Assignment Judge Mary C. Jacobson will hear John Paff v. Trenton Board of Education, Docket No. MER-L-2241-18. At issue is whether the Board's vote to give Superintendent Fred McDowell a $25,000 bonus should be voided out because the vote was taken after the Board's September 24, 2018 meeting had adjourned and the public had departed. A second, more far-reaching issue is whether the Board, which violated the Open Public Meeting Act by taking this vote after the meeting had adjourned, also violated rights protected by the New Jersey Civil Rights Act, putting the Board on the hook for court costs and attorney fees.

The Board's award of $25,000 to McDowell and the manner in which was done are controversial, were widely reported in the media and caused the Trenton Education Association and City Council members to demand Board President Gene Bouie's resignation. But, unlike the Open Public Records Act (OPRA), which requires government agencies to pay the attorney fees of successful OPRA plaintiffs, the Open Public Meetings Act (OPMA) requires each party to pay its own legal fees which dissuades most citizens from enforcing their rights under the Act. If Jacobson rules that the Trenton Board's OPMA violation also constitutes a violation of the New Jersey Civil Rights Act, she could award attorney fees because the Civil Rights Act expressly permits her to do so.

On December 19, 2018, the Trenton Board filed its opposition brief and certification and on December 21, 2018, the American Civil Liberties Union of New Jersey filed an Amicus Curiae brief.

The plaintiff is being represented by Donald M. Doherty of Ocean City.

OPRA lawsuit seeks Cumberland County's settlement agreement with former jail guard who was internally charged with bringing contraband into jail for two female inmates with whom he allegedly had sex.

noreply@blogger.com (John Paff) — Tue, 28 Aug 2018 02:26:00 +0000

Update: In a November 2, 2018 consent order, Judge Telsey ruled that the non-profit that I serve as executive director--Libertarians for Transparent Government--is the prevailing party and entitled to court costs and attorney fees. He redacted the County's settlement agreement with Tyrone Ellis but sealed the redacted agreement until he or the Appellate Division orders it released. He also issued a written opinion but sealed it until he or the Appellate Division orders it released. Judge Telsey's order prohibits my attorney from telling anybody--including me--of the settlement terms without his or the Appellate Division's permission.
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On Tuesday, October 9, 2018 at 9 a.m., Cumberland County Superior Court Assignment Judge Benjamin C. Telsey will hear argument in Libertarians for Transparent Government (LFTG) v. County of Cumberland, et al, Docket No. CUM-L-609-18. At issue is whether the County may lawfully suppress its settlement agreement with a former corrections officer who was allowed to retire in good standing, with a pension, after having been internally charged with "having inappropriate relationships with two inmates[,] bringing contraband to an inmate, and making up an alias which enabled him to provide [an inmate] with money and to correspond with her[.]" The County's opposition was filed on September 27, 2018.

According to the minutes of its March 12, 2018 meeting, the Police and Firemen's Retirement System (PFRS) Board approved former Cumberland County jail guard Tyrone Ellis' application for "special retirement" which allowed Ellis to receive a monthly pension benefit of $2,326.12 ($27,913.44 annually) after imposing a "partial forfeiture" of 5.2 years against his 25.2-year career, leaving him with 20 years of pensionable service. According to the Board, the County filed disciplinary charges against Ellis on August 23, 2016 for having "inappropriate relationships" with two inmates, identified only by their initials J.C. and L.D., and bringing contraband into the jail, including bras, underwear, cigarettes and a cellphone. L.D. had told investigators that she had a consensual sexual relationship with Ellis starting in March 2015, when she was not incarcerated, which continued after she was put in jail in April 2015. According to the minutes, L.D. and Ellis engaged in sexual intercourse in the men's locker room in August of 2015 and Ellis sent L.D. "money, written letters, and provided her with a cell phone and cigarettes." J.C. told investigators that although she and Ellis did not have sex in the jail, she did have sex with him when she was not incarcerated and that he gave her cigarettes when she was incarcerated.

(Note: In 2017, an inmate named Jennifer Cantoni, who may or may not be the same inmate as J.C., filed a lawsuit claiming that she was subjected to non-consensual sex by several jail guards while an inmate at the Cumberland County Jail. In her lawsuit, Cantoni claimed that Ellis "would find a spot in the hallway that was not covered by surveillance, and coerce [her] into performing oral sex on him." She accused Officer John Berry of coercing her to engage in "acts rang[ing] from oral sex to sexual intercourse" and alleged that Lieutenant Brad Pierce forced her to perform oral sex on him. Other similarly accused officers officers are also named in the lawsuit.)

According to the minutes, Ellis resigned but "agreed to cooperate" with County investigators after learning that his resignation would not stop the disciplinary charges from proceeding against him. His cooperation led to disciplinary charges being filed against four other corrections officers. On March 1, 2017, according to the minutes, the County and Ellis entered into a settlement agreement "which permitted Tyrone Ellis to retire in good standing and all charges listed on the [disciplinary notice] were withdrawn."

LFTG, a non-profit which I serve as executive director, filed an Open Public Records Act (OPRA) request with Cumberland County seeking a copy of the settlement agreement as well as Ellis' "name, title, position, salary, length of service, date of separation and the reason therefor." In his July 30, 2018 response, County Counsel Theodore E. Baker wrote that Ellis, who most recently was paid a $75,575 annual salary, "was terminated" even though he also acknowledged that a settlement agreement between Ellis and the County existed. Baker denied access to the settlement agreement claiming that it was a "personnel record."

In a brief filed on LFTG's behalf, Hackensack attorney CJ Griffin argued that the settlement agreement was an employment contract and not a personnel record. "If Cumberland County's argument is accepted, then agencies would be able to shield the public from knowing about separation agreements, severance agreements, or other settlement agreements that resolve internal disputes with employees. This undoubtedly would lead to corruption, as it would allow the transfer of public funds to public employees via confidential agreements with no public oversight at all," Griffin wrote. "[A] settlement agreement with an employee does not become a 'personnel record' merely because the agency says so."

LFTG's lawsuit also claims that Baker may have "misrepresented" the reason for Ellis' separation from employment by stating that he was "terminated." Griffin wrote in her brief that the County "surely intended to make it appear as if they took strong action against Ellis."

Does OPRA require a Township to inform the public if a cop has been paid for over three years without having to report to work?

noreply@blogger.com (John Paff) — Thu, 23 Aug 2018 22:31:00 +0000

On Tuesday, October 9, 2018 at 2 p.m., Burlington County Superior Court Assignment Judge Ronald E. Bookbinder will hear argument in Libertarians for Transparent Government v. Township of Eastampton, Docket No. BUR-L-1158-18. At issue is whether Eastampton Township must publicly disclose whether one of its police officers has been on paid suspension for over three years.

Earlier this year, I received an anonymous tip that Eastampton Police Officer Diana Welthy (previously known as both Diana Shimonovich and Diana Felenczak) had been on paid leave for three years. My search of court dockets disclosed that Welthy had filed a sexual harassment lawsuit against her police supervisors in April 2016 that was resolved by a November 15, 2017 Consent Order that "held [her lawsuit] in abeyance because of disciplinary charges filed against [Welthy] by the police department."

In her lawsuit, Welthy acknowledged that she was suspended and had her badge and weapon taken away on April 27, 2015. Since the Consent Order stated that "those disciplinary charges [were] relevant to" her lawsuit, it is indeed plausible that the anonymous tipster is correct in stating that Welthy has been on paid suspension from April 27, 2015 through to the present. (My research also found that Welthy (then Diane Felenczak) sued Eastampton on March 4, 2010 for gender-based harassment. In April 2011, Welthy and the Township entered into a confidential settlement agreement under which Welthy received $42,500.)

The non-profit for which I serve as executive director, Libertarians for Transparent Government, submitted an Open Public Records Act (OPRA) request to Eastampton for Welthy's "payroll record" and explained that OPRA requires local governments to disclose whether an employee is being paid while not reporting to work. In its response, Eastampton provided only an "Employee Maintenance" report that did not provide Welthy's actual salary and did not give any information on whether she was being paid for time when she was not working. (According to DataUniverse, Welthy is earning $91,888 per year from Eastampton.)

My non-profit, represented by CJ Griffin of Hackensack, filed the OPRA lawsuit against Eastampton because we believe that the public, especially Eastampton taxpayers, have a right to know whether or not upwards of $300,000 has been paid to Officer Welthy who may not have worked a single shift for over three years.

Lawsuit seeks CDR filed against Bridgeton police detective.

noreply@blogger.com (John Paff) — Tue, 31 Jul 2018 20:52:00 +0000

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.
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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.

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

noreply@blogger.com (John Paff) — Thu, 26 Jul 2018 19:35:00 +0000

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.

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

noreply@blogger.com (John Paff) — Tue, 19 Jun 2018 23:56:00 +0000

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."

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

noreply@blogger.com (John Paff) — Mon, 04 Jun 2018 22:10:00 +0000

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.

Supreme Court orders disclosure of names and addresses of auction purchasers of confiscated sports memorabilia.

noreply@blogger.com (John Paff) — Wed, 23 May 2018 16:00:00 +0000

Chief Justice Stuart Rabner

On May 23, 2018, the New Jersey Supreme Court, in a unanimous decision, reversed a July 6, 2016 Appellate Division ruling that held that bidders who successfully purchased confiscated items at a county prosecutor's auction had a reasonable expectation that their names and addresses would be withheld from the public.

In the ruling that was reversed, the Appellate Division weighed several factors, known as the "Doe factors," (named after the 1995 Supreme Court case of Doe v. Poritz), that courts consider when determining whether a person's privacy interests outweigh the public's right to know under the Open Public Records Act (OPRA). After analyzing the Doe factors, the Appellate Division panel held that the auction purchasers had a reasonable expectation of privacy because if their names or addresses were disclosed, they might become "targets of theft."

In today's decision, Chief Justice Stuart Rabner noted that "OPRA does not contain a broad-based exception for the disclosure of names and home addresses that appear in government records." He wrote that OPRA protects a "citizen's reasonable expectation of privacy" (emphasis in original) and that in this case, the courts should not have even considered the Doe factors because officials at the Bergen County Prosecutor's Office, who opposed disclosure, "did not present a colorable claim in support of their privacy argument."

"[I]t was unreasonable for a buyer to expect that the information requested would remain private. If anything, the sale of government property at a public auction is a quintessential public event that calls for transparency. To guard against possible abuses, the public has a right to know what property was sold, at what price, and to whom," Rabner wrote.

The non-profit corporation that I serve as Executive Director, Libertarians for Transparent Government, appeared as amicus curiae in this case and was ably represented by CJ Griffin of Hackensack. The plaintiff, William J. Brennan, was represented by Donald F. Burke and the Bergen County Prosecutor's Office was represented by Craig P. Bossong.

Local Finance Board will start posting ethics minutes on-line but will continue to obscure case docket numbers in those minutes.

noreply@blogger.com (John Paff) — Tue, 27 Feb 2018 19:03:00 +0000

Among the first orders of business at the Local Finance Board's (LFB) meetings is the consideration of complaints filed against local government officials for alleged violations of the Local Government Ethics Law (LGEL). While the Board keeps minutes of the portions of its meetings where LGEL complaints are discussed, it has not posted them on the Board's website. Rather, the Board posts transcripts of the other parts of its meetings on-line and requires the public to submit Open Public Records Act (OPRA) requests for the portions of the minutes that record the LGEL complaint discussions.

In a February 26, 2018 letter, however, LFB Chairman Timothy J. Cunningham promised that the Board will soon begin posting the minutes of the ethics portions on the Board's website.

Cunningham's letter was in response to my December 22, 2017 correspondence that requested on-line posting of the ethics minutes and for the Board to discontinue obscuring case docket numbers in those minutes. On the latter point, the Board's practice is to not refer to an ethics case by its case number but by another number that prevents the public from knowing which case is being discussed.

For example, the LFB discussed at its September 13, 2017 meeting an ethics case brought against former Ridgewood Mayor Paul Aronsohn and Manager Roberta Sonenfeld, LFB Complaint No. 16-009. But, the minutes of that meeting did not refer to "LFB Complaint No. 16-009" but to another number (in this case, III.A.7). I argued that the use of the separate number made it impossible for the public to know which case was being discussed.

In his response, Cunningham defended the minutes' use of a different numbering system as being necessary to keep the Board from "violating its confidentiality obligations." The LFB has historically assigned paramount importance to the confidentiality interests of accused local officials and very little importance to the public's right to know which officials are being investigated. In its rejection of New Jersey Foundation for Open Government's 2015 request for earlier disclosure of the identity of public officials under LGEL investigations, the Board wrote that "[d]isclosure of unverified information . . . may impact a [government official’s] standing in the community or employment with a public agency." Thus, ethics matters are kept completely confidential until a determination is made and ethics investigations often take years to complete.

Five members of Borough Council say that they lack an annual source of income in excess of $2,000.

noreply@blogger.com (John Paff) — Wed, 14 Feb 2018 15:31:00 +0000

As required by the Local Government Ethics Law, Woodlynne Borough (Camden County) Councilwoman Sharon Earley and her husband, Planning Board Member Robert Earley, both filed Financial Disclosure Statements (FDSs) in 2017. These filings are intended to disclose basic information regarding public officials' and their family members' sources of income, business interests and real estate holdings. Their purpose is to inform the public of the sources of the public officials' income so that the public can detect and report conflicts of interest (e.g. a zoning board member voting on an variance application filed by his or her spouse's employer).

But, both Earleys claimed on their FDS forms to have had no sources of income in 2016, earned or unearned, that were in excess of $2,000. Both also claimed not to have had interests in any business organizations. The only thing the Earleys disclosed on their forms was ownership of their Cedar Avenue home. While, I suppose that it's possible for a married couple who are homeowners in New Jersey to not have a source of income greater than $2,000, it seems very unlikely given that the property taxes on the home are more than $2,000.

After reviewing the Earleys' FDS forms, I decided to dig a bit deeper. I found that, including the Earleys, five Woodlynne Borough Council members who served in 2017 and four 2017 Planning Board members likewise claimed that their households lacked a $2,000 or greater source of income during 2016.

It seems to me that at least some of these officials really do have sources of income greater than $2,000 but would prefer not to report them. Failure to report, however, is against the law. Below is the text of complaint I filed yesterday against all nine officials with the Local Finance Board--the state agency that enforces the ethics law. The Board will conduct an investigation (which generally takes 2 to 3 years) and has the power to levy fines of between $100 and $500 if it finds that the ethics law has been broken. The complaint names all nine officials and provides links to each official's 2017 FDS filing.
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February 12, 2018

Patricia Parkin McNamara
Local Finance Board
101 S Broad St – PO Box 803
Trenton, NJ 08625-0803
(via e-mail only to Patricia.McNamara@dca.state.nj.us)

Dear Ms. McNamara:

We intend this e-mail to be our complaint against the following nine (9) Local Government Officers (LGOs) serving Woodlynne Borough (Camden County) who all held office in 2017 (Note that each name contains a live link to that LGO's 2017 Financial Disclosure Statement (FDS)):

Joseph Chukwueke, Council Member
Sharon Earley, Council Member
Alphonso Thomas, Council Member
Gwendolyn Torres, Council Member
William Valle, Council Member
Amy Earley, Planning Board Member
Robert Earley, Planning Board Member
Noble Kelly, Planning Board Member
Devy D. Robinson, Planning Board Member

1. State the point of the Local Government Ethics Law (LGEL) alleged to be violated.

N.J.S.A. 40A:9-22.6 which requires each LGO to file an annual Financial Disclosure Statement (FDS).

2. State the name(s) and title(s) of the parties involved in the action and against whom the complaint is filed.

Complainants are John Paff and the New Jersey Libertarian Party and Respondents are Joseph Chukwueke, Sharon Earley, Alphonso Thomas, Gwendolyn Torres, William Valle, Amy Earley, Robert Earley, Noble Kelly and Devy D. Robinson.

3. Set forth in detail the pertinent facts surrounding the alleged violative action.

Each Respondent is required to disclose on his or her FDS "each source of income, earned or unearned, which [he or she] received in excess of $2,000." Knowing the source of officials' income is important because it helps the public detect conflicts of interest that might otherwise go unnoticed. For example, if an applicant before the Planning Board employs and pays a Planning Board member's spouse more than $2,000 per year, a member of the public so informed could call attention to a conflict of interest if that Planning Board member attempted to vote on the application. In each of these nine (9) cases, however, the LGO stated that neither the LGO nor any members of the LGO's immediate family had any sources of income in 2016 from which more than $2,000 was received. While it is perhaps possible for an individual or family to live in New Jersey and have no single source of income of greater than $2,000, it is highly unlikely that five of the seven members of the Mayor and Council and four members of the Planning Board all have no sources of income from which more than $2,000 is derived. Further, Chukwueke and his wife, Sharon and Robert Earley, Valle and his wife, and Robinson and her husband all report ownership of real estate. It is general knowledge that real estate taxes in New Jersey would require a source of income in excess of $2,000 to pay. Complainants allege that each of these nine LGOs and their immediate family members have sources of income in excess of $2,000 but have chosen not to disclose those sources.

4. Indicate whether the complaint concerns the complainant in any way and what, if any, relationship the complainant has to the subject of the complaint.

Complainants have no interest in or relationship to this complaint greater than any other citizen or organization who wishes for all government officers and employees to comply fully with the Local Government Ethics Law.

5. Indicate any other action previously taken in an attempt to resolve the issue and indicate whether the issue is the subject of pending litigation elsewhere.

No other action has been taken previously in an attempt to resolve this issue and, as far as we know, this issue is not the subject of any pending litigation.

Thank you for your attention to this matter. I ask that you please acknowledge your receipt of this complaint within 30 days.

Sincerely,

/s/ John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
Voice: 732-873-1251
e-mail: paff@pobox.com

Unpublished trial court OPRA opinion.

noreply@blogger.com (John Paff) — Tue, 23 Jan 2018 16:41:00 +0000

Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals. Unless somebody puts them on-line and calls attention to them, they are likely not to be located by people who may want to search for them. I think that it's important that court opinions, even if they are not precedential, are easily accessible for future use.

Carin Geiger v. Borough of Englewood Cliffs, et al, Docket No. BER-L-7240-17
Hon. Robert P. Contillo, P.J.Ch.
January 19, 2018
Click here for the court's decision.

Summary: An e-mail sent by the mayor to a newspaper reporter was not subject to the executive privilege because it does not seek advice that would help the mayor make an informed decision. Rather, it was the mayor's comment defending actions taken by the Borough Council. Also, the mayor cannot invoke the Shield Law because that defense can only be invoked by the journalist, not the source. The Borough was ordered to disclose the e-mail and pay the plaintiff's attorney fees.

Court to hear OPRA case where school board denied access to documents that are publicly available at the courthouse.

noreply@blogger.com (John Paff) — Mon, 22 Jan 2018 18:32:00 +0000

On Monday, February 26, 2018 at 10 a.m., Bergen County Assignment Judge Bonnie J. Mizdol will hear argument on whether laws that accord confidentiality to certain student records justify a local school board's decision to deny access to a civil lawsuit that a student filed against the school board.

On October 17, 2017, Libertarians for Transparent Government (LFTG), a public-interest, non-profit (Disclosure: The author is the non-profit's executive director), sent an Open Public Records Act (OPRA) request to the Ridgefield (Bergen County) school district seeking a copy of February 2015 civil complaint filed against the district by "A.B.," a student identified only by his intitules. In the same request, LFTG also sought a copy of the September 2017 court order that approved the settlement of A.B.'s lawsuit.

In its response, the Ridgefield district denied access to both the civil complaint and the court order based on an October 16, 2017 Appellate Division opinion that, subject to very limited exceptions, mandated complete suppression of all records "related to an individual student" even if the student's name and other personal identifiers are removed. LFTG's attorney, Walter M. Luers of Clinton, pointed out that unlike other records, the civil lawsuits and court orders that LFTG requested "are public by their very nature and were filed in Court without a sealing order." Indeed, Luers was able to obtain for the court's new E-Courts on-line system an unredacted version of the September 2017 order that named both the student and his mother by name. The lawsuit, certification and brief filed in the OPRA lawsuit are on-line here. The Ridgefield Board's response is here and LTFG's reply is here.

This hearing is open to the public. If you plan to attend, please call the court offices at 201-527-2280 the day prior to confirm that the hearing date and hour have not changed. Refer to docket number BER-L-8864-17.

Court to decide whether to unlock docket and unseal records in special-needs elementary student's rape lawsuit.

noreply@blogger.com (John Paff) — Tue, 02 Jan 2018 17:11:00 +0000

Update: On January 22, 2018, Judge Ciccone denied our motion. Her Order and Opinion are on-line here.
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On Friday, January 5, 2018, Somerset County Assignment Judge Yolanda Ciccone will hear a motion filed by three open government advocates who seek to at least partially unseal court records and unlock the court's docket of a lawsuit filed by a then fourth-grader in the Hillsborough school district who claimed that she was raped multiple times by her former elementary school principal.

The motion, filed by me, along with transparency advocates Donald Baldwin and Paula Baldwin, aims to get at least minimal docket information on a lawsuit filed on June 1, 2017 by a former Hillsborough Township (Somerset County) fourth-grade girl who, according to media reports, claims that she was raped "hundreds of times" by now-retired Woodfern Elementary School Principal Matthew Hoffman. Currently, every document in the court's file is sealed and the case cannot be located on the Automated Case Management System (ACMS)--the civil court's on-line docket.

I first learned about the case's existence on September 18, 2017 when I visited the Somerset County Civil Division Manager's office for a routine record inspection. While at the office, I examined a book of court reports that revealed that an "assault and battery" lawsuit was filed by Jane Doe. After the window clerk denied my request for case documents, I made a formal, written request to the Trial Court Administrator for the order that sealed the file, a redacted version of the civil complaint and even innocuous documents such as cover letters that accompanied case filings and the court-generated notice that advised the parties of the "track" to which the case was assigned. In an October 6, 2017 letter, Civil Division Manager Mary Braunschweiger denied my request in its entirety.

Later, Donald Baldwin discovered that the case was the subject of a July 26, 2017 New Jersey 101.5 article written by Sergio Bichao titled "Ex-Hillsborough principal raped 4th-grade girl 'hundreds' of times, lawsuit says." That article reported that Hoffman, while a teacher in the Hopewell Valley Regional School District in the 1980's, was accused in a lawsuit of raping a young man over a four year period. That accusation resulted in a $300,000 jury verdict against Hoffman in 2015. According to Bichao's article, Hoffman retired at age 52 shortly after the Hopewell Valley student filed his lawsuit. No criminal charges against Hoffman have arisen out of either alleged offense. According to New Jersey pension records, Hoffman's final salary from Hillsborough was $129,724 and he receives a monthly pension of $4,745.

Our motion is being jointly opposed by Jane Doe and the Hillsborough school district. The opposition paperwork argues that the file was unsealed and the docket was open from June 1, 2017 through to September 15, 2017 when Superior Court Judge Thomas C. Miller sealed both the file and the docket. The opposition argues that the Baldwins and I should have opposed the sealing motion that Judge Miller decided in September and that it is too late for us to now challenge it. They also argue that nothing short of a complete sealing of the records and a total lock-down of the docket will protect Jane Doe's privacy. In our reply, we argue that we did not even know about the case when Judge Miller entered his order and that there should be a way, through use of pseudonyms, document redaction and other devices, for the public's interest in this case to be accommodated while still protecting Jane Doe's privacy. Under court rules, the burden is on the parties who wish to keep the sealing order in place to show that "good cause" continues to exist for sealing the records.

The Baldwins and I fully respect the young plaintiff's need for privacy. But, members of the public, especially Hillsborough taxpayers, have a legitimate interest in knowing whether Hillsborough school officials knew or should have known about Hoffman's alleged past conduct but turned a blind eye toward it.

According to Bichao's article, one of the defendants in the lawsuit is Susan Maglia, Hoffman's secretary, who sat outside Hoffman's locked office door during the alleged rapes and watched Hoffman walk the girl to her classes after the office visits. And, former Hillsborough Superintendent Edward J. Forsthoffer, who is now the superintendent of the Bordentown Regional School District, claimed through his attorney that he and other Hillsborough officials "had no way knowing about the previous allegations because [Hoffman] had never been charged with any crime that would show up in a background check."

The public has an interest in hearing testimony and seeing court records that could disclose whether Maglia, Forsthoffer and other school officials acted reasonably in protecting Jane Doe from harm. The Baldwins and I believe that Judge Ciccone can balance the public interest in this case against Jane Doe's privacy needs in a way that accommodates both.

Evesham Councilman, wife sue MUA for failing to redact social security number from records disclosed under OPRA.

noreply@blogger.com (John Paff) — Fri, 22 Dec 2017 22:36:00 +0000

On December 21, 2017, a member of the Evesham Township (Burlington County) Council and his wife filed a pro-se lawsuit against the Evesham Municipal Utilities Authority (MUA) and the Authority's records custodian for improperly releasing the Councilman's social security number in response to an Open Public Records Act (OPRA) request.

In their lawsuit, Robert and Virginia DiEnna said that in December 2015 MUA records custodian Laura Puszcz released records that contained Robert's social security number in response to to Phillip Warren's OPRA request. Councilman DiEnna said the MUA had his personal information because he was hired as an MUA employee in 2012.

The DiEnnas claimed that they did not become aware that Robert's social security number had been released until September 26, 2016. They claimed that the disclosure of the social security number invaded their privacy and caused them emotional distress.

The DiEnnas' lawsuit is only a list of allegations. Nothing has been proven and the burden of proof remains on the DiEnnas.

Unpublished trial court OPRA opinion.

noreply@blogger.com (John Paff) — Fri, 22 Dec 2017 20:46:00 +0000

Unpublished opinions" are not published in the law books and are not ordinarily written about in legal periodicals. Unless somebody puts them on-line and calls attention to them, they are likely not to be located by people who may want to search for them. I think that it's important that court opinions, even if they are not precedential, are easily accessible for future use.

Charles R. Cohen v. City of Englewood et al, Docket No. BER-L-7144-17
Hon. Bonnie J. Mizdol, A.J.S.C.
December 21, 2017
Click here for the court's decision.

Summary: The most intriguing part of Judge Mizdol's opinion is her remarks about time sheets prepared by an engineering firm that was under contract with Englewood. Even though the City did not have the time sheets in its possession, Mizdol suggested that she would have required the City to retrieve them for the OPRA requestor because those time sheets "should have been on file with, or accessible to city officials because such access allows the governing body to 'perform the oversight function expected . . .'" The internal quote was taken from the Supreme Court's holding in Verry v. Franklin Fire District No 1, 230 N.J. 285, 303 (2017). Judge Mizdol didn't require Englewood to produce the time sheets in this instance because the OPRA request was "unartfully drafted" and did not specifically ask for them.

Lawsuit seeks to compel Salem County to pay OPRA attorney fee.

noreply@blogger.com (John Paff) — Wed, 06 Dec 2017 22:34:00 +0000

On June 27, 2017, the Government Records Council (GRC) ordered Salem County to pay my attorney $2,310 in fees after having previously found on April 25, 2017 that the County violated my rights under the Open Public Records Act (OPRA). The County has thus far ignored several requests to pay the fees necessitating a lawsuit to compel payment of the $2,310 plus additional fees and costs for having to bring the lawsuit.

The original GRC matter was Paff v. County of Salem, GRC Complaint No. 2015-342. The new court matter is Paff v. Salem County, Docket No. SLM-L-222-17. Superior Court Judge David M. Morgan has issued an order requiring the County to appear in court on Friday, December 22, 2017 at 1:30 p.m. to show cause why it should not be required to pay the overdue fees.

My attorney is Ted M. Rosenberg of Moorestown and Salem County is being represented by County Solicitor Michael M. Mulligan.

3,974 (now 4,750) lines of OAL open case data are now on-line in an Excel file.

noreply@blogger.com (John Paff) — Fri, 01 Dec 2017 16:37:00 +0000

Update 02/08/18: I received a new list today that contains 4,750 lines of data rather than the 3,974 on the previous list. I believe that something was improperly suppressed on the previous list.
-------------------------------------
On July 31, 2017, I reported that the Office of Administrative Law (OAL), in response to an Open Public Records Act (OPRA) request, disclosed an Excel file containing docket information on about 350 cases. As I noted in my article, government agencies, in accordance with the Supreme Court's June 20, 2017 ruling in Paff v. Galloway, are now obliged to extract information from government databases in response to OPRA requests.

After writing my article, the OAL released an expanded list that contains docket information on all of its cases that were active on August 1, 2017. The list, set forth in an Excel file which I've placed on-line here, contains 3,974 lines of data. Since some are duplicates, this may represent about 2,000 separate cases.

To my knowledge, apart from the Excel file at the above link, the OAL has provided no method for members of the public to access its case docket. Accordingly, cases are filed and adjudicated without anyone other than the parties and their lawyers knowing that these cases exist.

Some of the cases are of significant public interest, such as the State Board of Examiners cases. These cases, represented by the code EDE in Column D, list the names of school teachers and administrators some of whom are contesting the suspension of their certificates. (Note: Column "D" of the table contains a three-character code that identifies the agency where the case originated. A table that lists each the three-character codes and its corresponding agency is on-line here.) Some of those matters have public hearings scheduled that will take place during the next several weeks. For example, someone named David C. Raffo is listed to appear before Administrative Law Judge John Scollo in Newark on January 10th and 11th of 2018. A Google search on Raffo's name shows that the Board of Examiners issued an Order to Show cause to him at its March 3, 2017 meeting to determine "why his certificate(s) should not be revoked based on the level and nature of the conduct."

While the database and Internet searches do not reveal the nature of Raffo's alleged underlying conduct, an interested member of the public or media could submit an OPRA request for the case documents and perhaps glean an understanding of the issues and attend the hearing to observe the proceedings. While in a perfect system all of public case information would be on-line, this Excel table at least provides members of the public and press with a roadmap that they can follow to obtain that information.

An open letter to Monmouth County Assignment Judge Lisa P. Thornton

noreply@blogger.com (John Paff) — Wed, 29 Nov 2017 21:14:00 +0000

Even though I ultimately received the records that the plaintiff's attorney sought to have sealed, public access to those records was delayed for about a month. I advocate not only for access to non-exempt government records but for prompt access to those records. Accordingly, I have brought my concerns regarding how access to these court records was improperly delayed to both Judge Thornton and the public by way of this open letter.
----------------------------------------------------
November 29, 2017

Dear Judge Thornton:

RE: Snyder v. Gramiccioni, Docket No. MON-L-2856-16

Thank you for permitting me to appear before the court telephonically on November 17, 2017 to argue against the plaintiff's motion to seal the court record. I have had a chance to review the documents that your office sent me yesterday and would like to bring to the court's attention a rule violation that I believe worked to impermissibly deprive the public of information about the captioned matter for over fifteen months.

The rule at issue is a July 1, 2010 amendment to R.1:38-11 that added the following paragraph (d):

Documents or other materials not exempt from public access under Rule 1:38 may not be filed under seal absent a prior court order mandating the sealing of such documents, and should not be submitted to the court with the motion, which may be filed on short notice, requesting an order to seal.

The amended rule establishes that a normally non-exempt record, such a civil complaint, may not be filed under seal unless a prior court order that seals the record has already been entered. Thus, if plaintiff's lawyer, Mr. Cushane, wished for his client's complaint to be sealed, he ought to have first filed a motion that set forth the "good cause" requirements of R.1:38-11. Then, if the motion was granted, he could have filed his client's complaint under an assurance that it would remain under seal unless and until an order to unseal it was entered. If the motion to seal was denied, Mr. Cushane and his client could elect either to proceed publicly or abandon the lawsuit, depending on the level of importance they assigned to the client's privacy.

What Mr. Cushane did, however, was file both the amended complaint and the motion to seal simultaneously on August 16, 2016. (Note: The original complaint, filed on August 4, 2016, was correctly rejected by the Court because it impermissibly identified the adult plaintiff by his initials rather than his full name.) Then, the motion to seal remained pending for more than sixteen months until it was finally adjudicated on November 17, 2017.

Mr. Cushane's motion filing, which violated the rule's admonition (i.e. "[records for which sealing is sought] should not be submitted to the court with the motion"), also had the unfortunate effect of being treated by the Monmouth County Prosecutor's Office (MCPO) as the equivalent of a sealing order.

On October 23, 2017, my non-profit organization submitted an Open Public Records Act (OPRA) request to the MCPO for records that were filed in this case. Even though no sealing order had yet been entered, Jennifer Lipp, the MCPO's records custodian, denied the OPRA request on the strength of Mr. Cushane's pending motion. In her October 23, 2017 e-mail, she wrote: "I have a duty to protect people’s privacy interests including medical, mental health, substance addiction, domestic violence, among other privacy interests. The motion is pending. Unless Judge Thornton tells the lawyers involved that she is not going to seal the record, I am not going to release them. Knowing there is a pending motion before the Assignment Judge could also be an ethical violation for me. Once Judge Thornton rules, I will let you know."

In other words, Ms. Lipp treated the pending motion as a fait accompli even though it had not yet been adjudicated. Had Mr. Cushane abided by R.1:38-11(d), the sealing motion would have been determined shortly after the August 2016 filing and Ms. Lipp's grant or denial of the OPRA request would have been dictated by the court's decision to grant or deny that motion.

At this point, I seek no remedy because, even though my access to these records was delayed for about a month I have now received them. I write only to inform the court of the denials and delays that the public faces when R.1:38-11 is disobeyed. I ask that the court keep my concerns in mind going forward.

Very truly yours,

John Paff

cc. Thomas Cushane and Jennifer Lipp

Court file released. Turns out case was filed by a former Marlboro police sergeant who wants to be declared "psychologically fit."

noreply@blogger.com (John Paff) — Wed, 29 Nov 2017 18:45:00 +0000

On November 7, 2017, I wrote an article titled "Who is T.S. and why is he or she suing the Monmouth County Prosecutor and seeking to have the lawsuit sealed by the court?" After a November 17, 2017 hearing, at which I participated both by filing a certification and letter brief and by arguing telephonically, Monmouth County Assignment Judge Lisa P. Thornton denied the sergeant's motion to seal the file and released most of the court filings to me. We now know that the suit was filed by a fired Marlboro Township police sergeant who seeks to be declared "psychologically fit to be conditionally rearmed and to conditionally return to full duty" after having reportedly been cleared by two psychologists who examined him after two separate incidents.

The essential facts, as alleged in former Marlboro Sergeant Timothy Snyder's lawsuit, are that Monmouth County Prosecutor Christopher J. Gramiccioni twice disallowed Snyder from possessing a firearm. The first time was on May 10, 2015 after Snyder's arrest for domestic violence--charges that Snyder claimed did not result in a conviction. The second time was on October 16, 2015 after Snyder was suspended by Marlboro Police Chief Bruce Hall when an "officer-in-crisis" report was filed after an incident that occurred in Snyder's home. The object of the lawsuit is to compel Gramiccioni to return Snyder's firearms and accept recommendations, made by separate psychologists who examined Snyder after each incident, that Snyder is fit for duty. Snyder has a separate, administrative matter pending before the Office of Administrative Law that contests Marlboro's reported decision to fire him effective June 3, 2016. This is only a summary. The court filings are available for those who want more details.

Snyder originally filed his lawsuit in August 2016 using only his initials, T.S., to identify himself. Judge Thornton quickly rejected this attempt and required Snyder's lawyer, Thomas A. Cushane of Vineland, to refile the suit using Snyder's full name. (Unfortunately, Thornton's decision did not cause the court's publicly-accessible, electronic docket to be updated. The docket, known as the Automated Case Management System (ACMS), identified the plaintiff as only "T.S." until mid-November 2017.) Also during August 2016, Cushane filed a motion to "seal any and all court records—including the complaint itself--in light of the extremely sensitive nature of the psychological reports and evaluations referenced at length therein as well as Snyder's public standing in the community as a municipal law enforcement officer."

In support of his motion to lock down the entire file, Cushane argued that while the public has a common-law right to inspect court records, the public's confidence in his client's ability to function as a police officer would be undermined if members of the public had "unfettered access" to documents filed in Snyder's lawsuit. The prosecutor's office argued that Cushane's position was "too broad" and that if "the Court were to accept that, then it would have to seal the records in every case where an officer's reputation or ability could be called into question."

Ultimately, Judge Thornton ruled that the court filings be released to the public while Snyder's psychological reports are sealed.

Appellate Division: Release that settled lawsuit is disclosable at time settlement terms are agreed to by the parties.

noreply@blogger.com (John Paff) — Wed, 15 Nov 2017 19:23:00 +0000

Are lawsuit settlement agreements subject to disclosure when the settlement terms are first hammered out and agreed to by the parties or can agencies suppress settlement information until all the paperwork is signed, sealed and delivered? This is an important question because weeks or sometimes months elapse between a lawsuit's parties' informal--yet binding--agreement to settle and the signing of a formal agreement by all parties. During those weeks or months, many public agencies deny access to settlement agreements thus depriving the public of important settlement information.

The case law on this issue has so far has been mixed. Judges in Essex, Hudson and Passaic Counties have ruled that agencies must disclose settlement agreements as soon as the settlement's essential terms have been agreed to and reduced to writing. (William Paterson University, however, has appealed the Passaic County judge's ruling and that appeal remains pending.) But, a judge in Mercer County has reached the opposite conclusion.

Today, an Appellate Division panel has come out on the side of early release.

On November 15, 2017, a two-judge Appellate Division panel issued an unpublished (and thus non-precedential) opinion holding that a release that settled a lawsuit was final and required to be disclosed to an Open Public Records Act (OPRA) requestor when "the terms of the settlement were agreed to between the attorneys for the respective parties" even though "the stipulations of dismissal were not filed and the settlement checks were not delivered until after" the parties' attorneys came to their agreement. The panel also said that releases and settlement agreements that settle lawsuits are "contracts" which must be made "immediately available" in accordance with N.J.S.A. 47:1A-5(e).

The opinion reversed a Final Agency Decision of the Government Records Council (GRC).