Monthly Archives: March 2015

Sunshine Week: Jennifer A. Borg, Esq.

We close Sunshine Week by featuring Jennifer A. Borg, Esq.

Ms. Borg is General Counsel and Vice President of North Jersey Media Group, publisher of The Record.  She is a recognized authority in First Amendment and open governance matters, particularly as they affect newspapers, and has recently served as Chair of the New Jersey Press Association.  She also has litigated numerous OPRA lawsuits with successful results.  Ms. Borg was featured in the ABA Journal (July 2014) for her expertise in OPRA and public records access issues.  Pashman Stein regularly serves as co-counsel with North Jersey Media Group on complex OPRA cases, several of which are presently on appeal before the Appellate Division.

Interview with Jennifer A. Borg, Esq:

  1. How many OPRA requests do North Jersey Media Group’s reporters submit each month? How many result in violations and/or litigation?

I have no way of knowing exactly how many requests are filed for any given time-period.  North Jersey Media Group has over 100 reporters and very few requests actually make it to my desk.  Usually, I am only contacted when a request is denied, although I do encourage reporters to allow me to help them draft the request.  Requests that are too broad or unclear are often denied so I like to work with reporters to make sure the  request is valid and specific.

I would estimate that we file 6-12 OPRA lawsuits a year.

  1. What are the most common OPRA violations that you see?

The most common violations are not providing a privilege log or Vaughn index with the denial.  Too often, an agency will just deny a request outright without listing the specific documents being withheld or explaining the reasons why each document is being withheld.

  1. Do you think OPRA and OPMA are working well?

I think OPRA is an improvement over the former Right to Know Law.  But, I agree with Senator Weinberg that amendments are greatly needed.  OPRA has been in effect for over a dozen years so we have had time to evaluate where it can be strengthened.  I have less experience with the Open Public Meetings Act (“OPMA”), but I find that it too is missing important language clarifying its terms.  For instance, agencies need to be more specific when giving reasons for going into closed session. “Personnel” and “litigation” do not suffice.    Because OPMA does not provide for attorneys’ fees to the prevailing party, many people don’t take significant violations to court. It’s simply too expensive for most people to pay a lawyer to litigate these claims.

  1. If you could persuade the Legislature to take steps to improve government transparency, what would be your top suggestions?

OPMA needs to provide for attorneys’ fees so that members of the public have lawyers willing to take their cases to court.  Without attorneys’ fees, the practical effect is that agencies can violate the statute without consequence.  There are many changes I would like to see made to OPRA.  For starters, I think the statute should make it clear that courts, and not just the GRC, can impose penalties against those who knowingly and willfully violate the statute and that requestors be allowed limited discovery to prove that an official engaged in such conduct.   It makes no sense that a public official can flagrantly violate the law and not be held accountable for his or her misconduct.  Custodians are required to perform an adequate search for records but too often judges do not allow a requestor limited discovery into whether the custodian’s search was proper and adequate.     Without looking under the hood, how can we hold officials accountable when they knowingly violate the law?   It is crucial for the public to be able to verify that a custodian or other official properly performed his or her job duties when responding to an OPRA request.

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.

Sunshine Week: Rich Rivera

Today’s Sunshine Week profile features Rich Rivera, a police practices expert who uses OPRA to monitor police misconduct and the use of force by police officers on citizens.  Mr. Rivera is the Chairman of the Latino Leadership Alliance of New Jersey’s Civil Rights Protection Project, which addresses the community’s needs relating to police services and police interactions. He is a former Board Member of the ACLU of New Jersey, where he co-authored the report “The Crisis Inside Police Internal Affairs.”  Pashman Stein has litigated several cases on Mr. Rivera’s behalf.

Interview with Rich Rivera:

  1. When and how did you initially become interested in the open government movement?

In the late 1990s, when I began researching policing in New Jersey.

  1. What types of government records or open government issues interest you most?

Anything relating to policing, as well as government efficiency and draconian government policies.  All of my requests are made to work towards reform and government transparency.

  1. How many OPRA requests do you file a year? How many times would you estimate the public agency violates OPRA? Of those, how many do you actually litigate?

I file over 100 requests each year. Custodians violate OPRA in about half of my requests, but I litigate about five instances a year. So overwhelmingly, the violations go unchecked.  I gave up on GRC complaints more than 5 years ago and file exclusively in Superior Court now, where you get results faster.

  1. If you could persuade the Legislature to amend OPRA, what would be your top suggestions?

I would ask the legislature to give some teeth to upholding public records access and to develop penalties for the unlawful destruction of public records.  As it stands, there are some entities that purge records after public access requests and that’s simply a crime.  But, an OPRA requester has no real recourse when that occurs.

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.

Sunshine Week: Pat Gilleran

Today’s Sunshine Week profile focuses on Pat Gilleran, a client for whom Pashman Stein has litigated many OPRA matters.  Pat is an open government and animal rights activist.  Pat’s litigation has been instrumental in forcing non-profit business improvement districts to comply with OPRA’s provisions.  Presently, Pashman Stein is defending an appeal on Pat’s behalf relating to video footage from a surveillance camera outside the Bloomfield Municipal Building. While the trial court ruled in Pat’s favor and held that the footage was subject to OPRA, Bloomfield has refused to release the footage.  A decision from the Appellate Division is expected soon.

Interview with Pat Gilleran:

  1. When and how did you initially become interested in the open government movement?

I attended a class that the legendary Martin O’Shea (a plaintiff in numerous landmark OPRA cases) gave in Bloomfield in 2008 (I think). I also found NJFOG and attended a seminar in 2013.

  1. What types of government records or open government issues interest you most?

Meeting minutes especially closed session meetings; Animal rights issues at Municipal Shelters;  501(c)3 organizations that are created and controlled by municipalities and ensuring that they comply with OPRA and OPMA; Eminent domain; Local (including county) finances; ELEC reports that can then be compared with contract awards; Records of contamination and cleanups.

  1. How many OPRA requests do you file a year? How many times would you estimate the public agency violates OPRA? Of those, how many do you actually litigate?

I filed my first OPRA request in 2010 – it was for Bloomfield Town Council meeting minutes.  The response was disheartening in that I was told that meeting minutes would not be produced, but that video was available to the tune of $20 per meeting.

I filed 53 OPRA requests in 2012 (it was reported in the local paper) and didn’t have an attorney so zero were litigated. I’d say that about 20% of the responses violated OPRA in that they were incomplete or that they denied that records were available. In 2013, the number of requests that I filed went up to 82 (I know because someone OPRA requested all of my OPRA requests).  I still didn’t have an attorney so zero were litigated, but at least 20% of the responses violated OPRA.

2014 was a banner year for me. My strategy changed. I was connected with my attorney CJ Griffin and figured out that in order for the public agencies to start complying with OPRA, there had to be some court sanction of their wrongful denials.  I filed over 100 requests and 9 were litigated, all of which were victories for me because the public agencies had so clearly violated OPRA.  One of those cases relating to security camera at the Bloomfield Municipal Building is on appeal.

For 2015, I have filed about 50 requests so far this year. At least 50% of the responses (or lack thereof) have violated OPRA.

  1. If you could persuade the Legislature to amend OPRA, what would be your top suggestions?

A more lenient standard for personal penalties for Municipal Clerks that willfully violate OPRA and withhold documents. Support of the Open Public Meetings Act by mandating attorney fees for those who file OPMA violations. Penalties for excessive and unwarranted extensions.

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.

Sunshine Week: Harry Scheeler

Continuing with our Sunshine Week theme, today’s blog focuses on Harry Scheeler.  Recently, CJ Griffin of Pashman Stein secured a victory on Mr. Scheeler’s behalf against the Office of the Governor, which had denied access to RSVP lists for those attending Governor Christie’s Town Halls.

Interview with Harry Scheeler:

  1. When and how did you initially become interested in the open government movement?

I first became interested in open government as a teenager. In the early 1990s the police department in my hometown was given cell phones for the purpose of calling judges for restraining orders and warrants. Over time you could see officers parked in their cars talking on the phone. When I requested copies of the bills they revealed many personal calls being made. At the time, the calls were billed per minute based on peak and off peak. The exposure of these bills in the court of public opinion put a stop to the abuse. The experience proved to me how powerful public oversight is.

  1. What types of government records or open government issues interest you most?

My main interest is testing the willingness of the government to turn over records to the public. When they don’t, I use litigation to enforce the law and compel compliance.

  1. How many OPRA requests do you file a year? How many times would you estimate the public agency violates OPRA? Of those, how many do you actually litigate?

I estimate I file about 100 requests per year. Of those requests there is a 50/50 chance there will be a violation. I attempt to correct the violation with the custodian but most of the time I am met with a bureaucratic attitude which leads to litigation quickly. I would estimate I average 20 lawsuits per year, most of which are filed with the GRC.

  1. If you could persuade the Legislature to amend OPRA, what would be your top suggestions?

I would ask for two things. First, mandatory fines for custodians who repeat a violation. Second, I would have the GRC randomly audit an agency’s compliance with OPRA to identify issues. Currently it appears custodians end up being trained by way of litigation started by activists such as myself.

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.

Sunshine Week: A Win in Helmetta for the Wronkos

It’s Sunshine Week– a national initiative to promote a dialogue about the importance of open government and freedom of information.  This week on the blog we will feature some of Pashman Stein’s clients who are open government activists or journalists and highlight some proposed changes to the New Jersey Open Public Records Act (OPRA) that are currently pending in the Legislature.

Today we feature Collene Wronko, an open government and animal rights activist from Middlesex County.  Ms. Wronko and her husband, Steve, have led a group of dedicated activists who have used OPRA to shine light on the abusive conditions at the Helmetta Regional Animal Shelter.  Not all of the records were easily obtained, however, and the Wronkos hired CJ Griffin last fall to file a suit on their behalf.  Last week, Superior Court Assignment Judge Travis L. Francis issued a decision finding Helmetta in violation of OPRA on numerous counts and compelled them to remove redactions from hundreds of animal intake records and release numerous other records that it had unlawfully withheld.

Interview with Collene Wronko:

  1. When and how did you initially become interested in the open government movement?

I initially became interested in the Open Public Records Act, when I was trying to prove that there was abuse at the Helmetta Regional Animal Shelter.   I was able to use the Open Public Records Act (OPRA) to get records that would show how incompetently the shelter was run, but the Borough itself made it very difficult to get the records.  My requests were repeatedly denied or I was given negligent responses that did not contain all of the records I had requested.  Ultimately, OPRA helped me get the word out so that the shelter situation was featured on Kane in Your Corner and the New Jersey Society for the Prevention of Cruelty to Animals (NJSPCA) raided the shelter, took it into receivership, and filed animal cruelty charges against its directors.

  1. What types of government records or open government issues interest you most?

I am most interested in records surrounding Municipal Shelters, NJSPCA, and misconduct of police officers in small towns, as well as how council are running small towns and if they are running them with a transparent government or a back door government.

  1. How many OPRA requests do you file a year? How many times would you estimate the public agency violates OPRA? Of those, how many do you actually litigate?

In 2014, I filed approximately 125 requests.  I would say at least 100 of those requests had some sort of violation within the response.  Most we handled with a quick note from me or my attorney, but there approximately a dozen or so that we had to sue on.  The case against the Borough of Helmetta was quite large and included numerous violations, but there were dozens and dozens more by them that we did not include in the lawsuit for various reasons.

  1. If you could persuade the Legislature to amend OPRA, what would be your top suggestions?

The one thing I would like to see changed are Internal Affairs investigation reports for all types of police.  I do not believe keeping these public records safeguarded from the general public is “transparency”.  If anything, we should want to know what the police officers are doing that would cause citizens to file complaints and to see if those complaints are repetitive.  Right now, it is very difficult to get those records.

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.

Public Employees Cannot Escape OPRA by Using Personal Email Accounts

News broke this week that Hillary Rodham Clinton exclusively used her personal email account to conduct government business while she was Secretary of State.  Unfortunately, this practice occurs quite frequently at the local levels of government and it has the potential to undermine government transparency, as it allows public officials to conduct public business behind closed doors. New Jersey’s Open Public Records Act (“OPRA”) is broad enough, however, to require such emails to be produced.

OPRA defines a “government record” as any document (including electronically stored information, such as email) “that has been made, maintained or kept on file” in the course of a public official or public employee’s “official business.”  This means that the right to access an email via OPRA is based on the content and nature of an email itself, not the specific account from which the email was sent. In other words, if a public employee sends an email in which public business is discussed then that email is subject to OPRA regardless of whether it was sent from the public employee’s official business account or from a personal account such as Gmail or Yahoo.

There are complications, of course, which is why public agencies should adopt policies that require all public business to be conducted via the agency’s official business accounts. When an OPRA request is submitted for emails, a Records Custodian can easily ask the IT Department to search the public agency’s server to find responsive emails—even those that have been deleted from the employee’s inbox.  It is much more difficult, however, to gain access to personal email accounts and the Records Custodian generally must rely upon the employee to search his or her own personal email account and produce all responsive emails.  At worst, this opens the door for potential corruption because the Records Custodian has no control over what was produced. At best, it is probable that not all responsive emails will be produced simply because the public employee likely deleted emails from the personal account over time and they are generally recoverable on a private server like they are on the public agency’s official email server.

When making an OPRA request, ask for emails from both the official government account and any personal email account so that the Records Custodian knows that both must be searched.  When you receive a response, clarify with the Records Custodian that any personal accounts were also searched.

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.