Monthly Archives: March 2018

An Appellate Division Win

Today, PSWH secured an appellate victory for two long-term firm clients, Richard Rivera and Collene Wronko.

The case involved OPRA requests for records from the Middlesex County Prosecutor’s Office (MCPO) which related to an incident where police officers shot and killed a man outside his home in Old Bridge. Both Mr. Rivera and Ms. Wronko sought access to the 9-1-1 call of the incident, as well as other police records, such as CAD reports and Standard Operating Procedures. Their requests were denied.

After lawsuits were filed, MCPO eventually released a redacted version of the 9-1-1 call. The judge upheld those redactions, ruling that those portions of the call raised serious privacy concerns. The judge also ordered MCPO to release CAD reports and Standard Operating Procedures, but permitted redactions to any exempt material. Despite the fact that both Ms. Wronko and Mr. Rivera got exactly the relief they were seeking in their lawsuits (lawfully redacted records), MCPO insisted that they were not entitled to full reimbursement of their fees.  Judge Francis disagreed and found that both requestors were fully prevailing parties and awarded approximately $22,000 in fees and costs.

MCPO appealed, again arguing that the requestors were only “partially” prevailing parties since they received only redacted records. The Appellate Division affirmed Judge Francis’ decision, describing MCPO’s arguments as “factually inaccurate and lack[ing] merit.”

The MCPO lost two other appeals involving media companies who had requested the same 9-1-1 call, bringing the total cost for denying access to the 9-1-1 call to over $130,000.  Because MCPO lost its appeals, the requestors will be entitled to additional fees for the appellate work.

A copy of the decision may be found here.

Media Coverage:

Middlesex County Prosecutor’s Office to Pay $20k in OPRA Case,” MyCentralNewJersey.com (Mar. 20, 2018).

Middlesex Prosecutor Again Loses on OPRA Fees Issue,” N.J. Law Journal (Mar. 20, 2018).

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A Sunshine Week Win on Payroll Records

Today, Pashman Stein Walder Hayden secured a victory for our client, Jennifer Coombs, in an OPRA case against the Borough of Westwood.

Ms. Coombs had requested payroll records from Westwood for all employees working for the Borough in 2017.  Westwood responded to Ms. Coombs’ request by providing a payroll report, but redacting the names of numerous employees from it. Westwood stated that the redacted names were of minor employees who worked in the summer recreation program and that they were entitled to privacy.  After Ms. Coombs objected, Westwood released a new version of the report, but included only initials instead of names for all employees under the age of 18.  Ms. Coombs filed suit and Westwood opposed, insisting that OPRA’s privacy provision permitted non-disclosure of the names.

Today, the Honorable Bonnie J. Mizdol, A.J.S.C., ruled in Ms. Coombs’ favor. The judge noted that N.J.S.A. 47:1A-10 provides that notwithstanding any other law to the contrary, a government employee’s “name, title, position, salary, payroll record” and other enumerated information is accessible under OPRA. Thus, the judge ordered disclosure of the payroll records without redactions to the names of the minor employees, ruling that OPRA’s privacy provision was not applicable and that government employees have no reasonable expectation of privacy over their name and salary information.

“The language of the statute could not be any clearer,” said PSWH Partner CJ Griffin, who represented Ms. Coombs. “While most personnel records are exempt from access, the Legislature has declared that the public is always entitled to basic information about government employees, including their names and salaries. To rule that the identities of certain categories of employees could remain secret would permit unchecked nepotism or corruption to occur.”

Westwood has until March 20, 2018 to produce the payroll records. Judge Mizdol also ruled that Ms. Coombs’ is entitled to an award of attorneys’ fees for prevailing in the suit.

Click here for a copy of the decision.

For questions or comments, please contact CJ Griffin at 201-270-4930 or cgriffin@pashmanstein.com

AG Issues New Police Shooting Video Directive

Last week, Attorney General Gurbir S. Grewal issued Attorney General Law Enforcement Directive No. 2018-1, which provides instructions to law enforcement agencies in this State regarding public access to dash camera and body camera footage of police-involved shootings.  We find that there are both pros and cons to this new directive.

Pros:
On one hand, we are very happy to see that the new Attorney General clearly understands that transparency advances public trust in law enforcement. The overall spirit of this directive is positive and it recognizes that law enforcement do not need permanent confidentiality over their records–the directive requires disclosure of police shooting videos within 20 days, in most cases. The presumption of access is important and we hope that agencies will follow the directive and will not seek constant extensions of time to release these videos.

Cons:
On the other hand, the new directive does not give the public any more access than already existed pursuant to the Supreme Court’s decision in North Jersey Media Group v. Township of Lyndhurst. If anything, the new directive may make access to police shooting videos slower, as the Lyndhurst decision held that access must be granted “within a few days” and the new directive sets a timeline of 20 days.  We fear that  requestors will now need to wait for 20 days after an incident to file an OPRA request, then wait an additional 7 business days to gain access to the video. This is much slower than what we have experienced the past several months since the Lyndhurst decision was issued.

We are also disappointed that the directive only applies to videos which depict the use of deadly force or where other force results in “serious bodily injury.”  We think that the spirit of the Lyndhurst decision makes it clear that most police videos should be released relatively soon after an incident occurs, but the new directive applies Lyndhurst very narrowly and the public will still struggle to gain access to police video which shows other types of misconduct or more minimal uses of force.  For example, we think that if a police officer uses a racial slur toward a suspect while arresting them, the public should be able to see the video.  The new directive, however, would not require disclosure unless the suspect was seriously injured.  This is problematic.

News Coverage:
PSWH Partner CJ Griffin was quoted in NJ Advance Media’s article on the new directive.

 

For assistance with OPRA matters, please contact CJ Griffin at 201-488-8200 or cgriffin@pashmanstein.com.