CJ Griffin Interviewed for Marketplace Reports on NPR

CJ Griffin, a member of Pashman Stein Walder Hayden’s Media Law Group, was interviewed by Marketplace regarding a prior OPRA lawsuit she brought against the City of Newark seeking its Amazon HQ2 bid.

The public radio program, “What’s in Those Amazon HQ2 Bids? It’s Not Entirely Clear” by Renata Sago and Leila Goldstein, aired on Tuesday, November 6th.

“There’s hundreds of millions or billions of dollars, of tax dollars, at stake,” said CJ Griffin, a partner at Pashman Stein Walder Hayden, who argued the case. “That’s taxpayer money. When you give tax breaks, that impacts other people, so the public has a right to know.”

To listen to the story, click here

For more background on the lawsuit, click here.

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You Only Have 45 Days to Sue for an OPRA Violation

Perhaps the most important thing to remember about OPRA is that there is a very, very short statute of limitations period. This means that if you receive a denial, you need to act very quickly or you may lose your rights to gain access to the record you seek.

What do you do if you receive a denial from an agency or if the agency unlawfully redacts information from government records?

The best course of action is to immediately speak to an attorney, who can work with you to gain access to the records. This frequently requires a lawsuit filed in Superior Court.  Again, the most important thing to remember is that your action must be filed within the statute of limitations, which is only 45 calendar days. The process for filing in Superior Court is as follows:

  • You will sign a retainer agreement with an attorney, which likely agrees to represent you on a fee-shifting basis (meaning, there will be no charge to you–the agency will pay the fees if and when you prevail)
  • A Verified Complaint and Order to Show Cause is filed. These will be drafted by the requestor’s attorney, though the requestor must sign the complaint to verify it is accurate.
  • The judge will review and sign the order, which sets for a briefing schedule and a hearing date.
  • The pleadings are then served upon the public agency and they will submit an opposition brief. Sometimes, an agency may opt to release the records and settle the attorney fee amount rather than proceed with the litigation.
  • The requestor’s attorney has an opportunity to file a reply brief
  • A hearing is held, wherein the judge will hear arguments from both sides. For simple cases, the judge will usually enter a ruling that day. More complex cases may require a little more time for an opinion to issue. The requestor need not be present for the hearing.
  • If the requestor is declared a prevailing party, the Court will order the agency to pay the requestor’s attorney fees.

Again, the most important thing to remember is that there is a very short timeline for filing the initial Verified Complaint – 45 days from the date your request was denied.

For more information about this blog post, please contact cgriffin@pashmanstein.com.

Lawsuit Seeks Settlement/Separation Agreement For Corrections Officer

NJ Advance Media has written about the recent lawsuit we filed on behalf of Libertarians for Transparent Government seeking a settlement/separation agreement between Cumberland County and a corrections officer who allegedly had inappropriate relationships with inmates. The lawsuit also asks the Court to find that Cumberland County violated OPRA when it told Plaintiff that the corrections officer was “terminated for disciplinary reasons,” when the Pension Board’s meeting minutes state that he was allowed to “retire in good standing.”

PSWH partner CJ Griffin is quoted in the article:

Attorney CJ Griffin, representing the plaintiff, argued that the county has provided a distorted view of Ellis’ case.

“By indicating that Ellis had been terminated for a disciplinary infraction, it leads the public to believe that Ellis paid a price for his admitted misconduct,” the suit states, “In reality, according to the pension board’s minutes, Cumberland County instead allowed him to ‘retire in good standing.'”

The South Jersey Times also published an editorial on the case, arguing that settlement agreements with employees should never be confidential.

For more information on the lawsuit and to review the pleadings, visit John Paff’s “NJ Open Government Notes” blog.

For questions about OPRA, contact CJ Griffin at cgriffin@pashmanstein.com.

 

 

OPRA Modernization Bill – copying fee problems

Every year, transparency warrior Senator Loretta Weinberg introduces a bill which would modernize and improve OPRA. This year’s bill is S107. Given that Democrats now control the Senate, Assembly, and Governor’s Office, we are hopeful that the bill has a chance of passing.

While the bill overwhelmingly improves OPRA, through a series of blogs we will highlight how some small provisions of the bill that seem non-controversial can actually cause some major problems for requestors.

First topic? Copying costs.

Currently, agencies cannot charge a copying charge to send requestors PDFs of documents. One creative way that agencies try to stall access to records is to think of a way to charge for them. Sadly, S107 will make such conduct perfectly legal.

S107 amends N.J.S.A. 47:1A-5(b) so that “a public agency may charge the fee for each copy made in the process of responding to a government record request made during the redaction process.”  What this means is that if an agency has to print a copy of a record to redact it, it can charge for that copy even if it ends up scanning the record to the requestor in a PDF.

Hypothetical:

John Doe files an OPRA request for a copy of an employee’s one-page pay stub. The Custodian is obligated to redact the employee’s social security number from that document, so she prints a copy of it and redacts it. S107 allows her to charge 5 cents for that record. She emails John Doe and tells him that he has to pay 5 cents before she will email the pay stub to him and that he can either mail in a check or come pay by check at the clerk’s office.

John Doe now has to find his checkbook, write a check for a measly 5 cents, pay 49 cents for a sttamp, and wait 1-3 business days for it to arrive and the Custodian to email the pay stub to him. Or, he can take time off work to go drop off a check during the Custodian’s business hours. That’s an awfully big hurdle to receive a pay stub! It’s not the cost is too much, but the hassle of having to arrange to pay the fee discourages and delays access. But, S107 permits it.

This is not a crazy hypothetical, by the way. Things like this actually happen all the time. The GRC has addressed this issue several times, such as in Galloway Township News and Paff.

Hopefully this provision will be removed as the S107 works its way through committees.

Supreme Court Rules Dash Cams Pertaining to Criminal Investigations Are Not Subject to OPRA

This week, the New Jersey Supreme Court issued a split decision (4-3) in Paff v. Ocean County Prosecutor’s Office and once again ruled that dash camera videos that pertain to criminal investigations are not subject to the Open Public Records Act (OPRA).

While the decision is a serious disappointment to transparency advocates, it does not actually change the status quo. Last year, in North Jersey Media Group Inc. v. Township of Lyndhurst, a unanimous Supreme Court ruled that the dash cam video of a police-involved deadly shooting was not subject to OPRA because there was no Attorney General (AG) guideline or other law (statute, regulation, etc.) that required it to be made or maintained.[1]

The Court made it clear in Lyndhurst, however, that dash camera videos of police shootings should generally be released under the common law right of access within a few days of an incident. The AG subsequently issued a directive requiring their release within 20 days.

In Lyndhurst, the Court specifically said that it was not answering the question presented by Paff (which was pending on the Court’s docket): whether a directive by a local chief of police could satisfy the “required by law” standard, just as an AG directive does. Thus, the Paff case became a new opportunity for transparency advocates to convince the Court that dash camera videos are accessible under OPRA.

Unfortunately, the Court rejected that argument and thus the law remains the same: dash camera videos are only available under the common law right of access. But, it was a very close decision (4-3). Justice Albin wrote a biting dissent, which Justice LaVecchia and Justice Timpone joined, concluding that “[i]n the wake of today’s majority opinion, the operations of our government will be less transparent and our citizenry less informed, which may lead to greater misunderstanding and more distrust between the public and the police.”

We think Justice Albin’s assessment is right and we hope that the Legislature or the Attorney General will accept his invitation for action:

In accordance with Lyndhurst, the Attorney General or the Legislature can undo the damage caused by today’s decision. The Attorney General can adopt a statewide policy that addresses whether and how police video recordings are made and maintained, as he did with Use of Force Reports.

The public — particularly marginalized communities — will have greater trust in the police when law enforcement activities are transparent.

The public pays for the dash cameras. Why can’t we see the videos?

What Videos are Still Available?

  • Dash Cam Videos Relating to Crimes: These are probably not available under OPRA in most circumstances, but generally should be available under the common law per Lyndhurst.
  • Dash Cam Videos of Police Using Deadly Force: Same. Also, AG Directive 2018-1 requires disclosure under the common law within 20 days if the video depicts a deadly shooting or an incident where police use force that results in “serious bodily injury.”
  • Dash Cam Videos of a DWI: A DWI is not a crime, so these should generally be available under OPRA.
  • Dash Cam Videos of Traffic Stops: These should generally be available, unless the traffic stop turns criminal.
  • Body Camera Videos: We think these should be subject to OPRA because an AG Guideline requires them to be maintained. At the same time, the AG Guideline attempts to exempt body cam videos relating to criminal investigations. We have this issue pending on appeal.
  • Security Camera Videos: The Supreme Court ruled in 2016 that security camera videos are not subject to OPRA, but access should be granted under the common law where a person states a sufficient interest in the video.

PSWH partner CJ Griffin submitted a brief on behalf of several amicus curiae and participated in the nearly three-hour oral argument. Griffin has litigated dozens of police records cases, including Lyndhurst.  Contact CJ at cgriffin@pashmanstein.com


[1] A criminal investigatory record is a record that is 1) held by a law enforcement agency; 2) pertain to any criminal investigation and 3) are “not required by law to be made, maintained, or kept on file.”

OPRA Seminar on 9/6 in Voorhees

PSWH Partner CJ Griffin will present a seminar in Camden County titled “OPRA 101: How to Use the Open Public Records Act to Hold Your Government Accountable.”  The event is being hosted by LoveLindenwold.org

Date and Location:

Thursday, September 6, 2018
6pm
M. Allan Vogelson Regional Branch, Camden County Library System,
203 Laurel Rd
Voorhees Township, NJ 08043

Event Description:

The New Jersey Open Public Records Act (“OPRA”) is a powerful tool for people who want to ensure that their government is transparent and accountable. This seminar will provide you with the nuts and bolts to use OPRA effectively.

Topics to be discussed include:

  • How to draft a valid OPRA request
  • Explanation of common exemptions
  • Tips for getting the records you want
  • What to do when your request is denied

RSVP:
Seating is limited. Please RSVP by calling 1.888.498.6788 or by sending an email to: love at lovelindenwold.org.

To view the event flyer, click here.

If your community organization or newsroom would like to host a seminar, please contact cgriffin@pashmanstein.com.

Amazon suit continues to get coverage

The New York Times has published an article about the serious lack of transparency regarding the proposals that cities have submitted bids to Amazon for their HQ2 Headquarters. Despite the fact that the taxpayers of the winning city will be on the hook for billions of dollars in incentives, too many cities are still keeping the public in the dark about what Amazon is being offered.

The article references our lawsuit, which secured access to the City of Newark’s bid, which we published.

PSWH Helps Reclaim The Records Get New Jersey’s Death Index

Our client, Reclaim the Records, just published a newsletter explaining how PSWH partner CJ Griffin helped the organization gain access to New Jersey’s Death Index.

Reclaim The Records is a not-for-profit activist group of genealogists, historians, researchers, and journalists. It works to identify important genealogical record sets that are not online anywhere and not broadly available to the public. Through public records laws, it works to obtain copies of the records and then digitizes them and puts them online for free use.

What did Reclaim the Records do with the Death Index? It created a new website, https://www.newjerseydeathindex.com, which it describes as “Your one-stop shop for everything you ever wanted to know about the New Jersey Death Index, with a searchable database of over 1.2 million records for 2001-2017 and direct links to over 500,000 digital images for the not-yet-transcribed 1901-2000 data.”

Screenshot of the New Jersey Death Index website

We are always excited to see the creative ways that our clients use the data and records that we help them obtain. Reclaim The Records has provided this great free service to the public, which will no doubt help those who are performing genealogical research about their own families.

 

 

Update: Court Orders Disclosure of Facebook “Blocked Users” Lists

We previously wrote about an OPRA lawsuit we filed on behalf of citizen seeking a list of users that various public officials from Glen Rock have blocked from their official Facebook accounts. Today we are happy to report that the suit was successful.

In Larkin v. Glen Rock, the Honorable Bonnie J. Mizdol, A.J.S.C., ruled that the lists of blocked users from each of the Facebook pages in questions were “government records” that are subject to access under OPRA. In her 23-page opinion, the judge noted that there is no “one-size-fit-all” approach to determine whether a particular Facebook account falls within OPRA’s scope. Rather, she applied a “fact-sensitive review” of the Facebook pages at issue to conclude that they were indeed subject to OPRA.  Among other things, the judge noted that:

  • The mayor and each council member’s Facebook pages “clearly identified them as elected members of the Glen Rock governing body”
  • Each page was “separate and distinct from their personal, friends and family Facebook pages”
  • Each page “was used for the sole purpose of discussing matters directly pending before the Mayor and Council,” including topics such as “ordinances, resolutions, budgets, and committees on which the Mayor or council member serves.”
  • The posts on each page “shared ideas, answered questions and interacted with constituents and the public at large about the Borough’s official business”

The court also rejected Glen Rock’s argument that those who were blocked by the public officials had a right to privacy.

 

Court Issues Jail Death Records Opinion

On June 4, 2018, the Appellate Division issued an unpublished OPRA opinion titled Benedetto v Russo and Union County. While the opinion is not binding on lower courts because it is unpublished, we think it is helpful in several ways.

First, the case involves very important records: incident reports regarding suicide and suspicious deaths within a County Correctional Facility. Given the widespread coverage regarding several deaths in the Hudson County Jail recently, it is important that the public has access to information about these deaths and the conditions inside the jail.

In this case, Union County argued that the incident reports regarding jail deaths could not be disclosed because N.J.A.C. 10A:31-6.10(a)(4) exempts “[a]ny information relating to medical, psychiatric or psychological history, diagnosis, treatment or evaluation.”  Additionally, Union County argued that records relating to drug overdoses could not be disclosed pursuant to N.J.A.C. 10A:31-6.10(a)(3), which exempts a “record, which consists of any alcohol, drug or other substance abuse information, testing, assessment, evaluation, report, summary, history, recommendation or treatment.” Thus, Union County argued the incident reports were medical records and exempt pursuant to both of those regulations.

The trial court ruled that these exemptions did not apply. The Appellate Division affirmed, agreeing with the trial court that the requestor did not seek “inmate medical records,” but rather sought “incident reports.” This is an important ruling because public agencies frequently try to categorize a record as something it is not.

The second reason this case is important is because it reinforces the rule that public agencies cannot meet their burden of proving that a record is exempt simply by making factual assertions in legal briefs. Instead, public agencies must produce affidavits, certifications, or other “legally competent evidence” if it wishes to cite facts not in the record. Unsworn assertions by attorneys in a brief are simply not evidential.

Too often in an OPRA case, a public agency will produce no evidence whatsoever and will ask the trial court to accept what was argued in a brief or to make a ruling based on assumptions. This case confirmed that is not acceptable.

Please contact CJ Griffin at cgriffin@pashmanstein.com or 201.270.4930 for further information.