Category Archives: Articles

“The Legal Implications of Governmental Social Media Use”

Pashman Stein Walder Hayden partner CJ Griffin has published an article in the April 2019 issue of New Jersey Lawyer magazine, titled “The Legal Implications of Governmental Social Media Use.” A full copy of the article can be viewed here:

Vendor Activity Reports: A Helpful Tool for Tracking Spending

Many people want to know how they can monitor an agency’s spending and determine how much an agency is paying a certain vendor (such as a law firm, plumber, construction company, or insurance company) or even who the agency’s vendors are. A “Vendor Activity Report” (or “Vendor History Report”) is a very helpful tool for learning this information.

A Vendor Activity/History Report details all payments made to every individual or company that was entered into the agency’s accounting software in order to receive a payment. If a bill is paid, then there is a corresponding “vendor” entry in the accounting software.  The Vendor Activity/History Report will list all of the vendors and the total amount of money they were paid during the requested time frame. Once you obtain the report and see something that interests you, then you can you can request the corresponding payment vouchers and bills/invoices for that vendor to further investigate the spending. Requestors have used the Vendor Activity/History Report to identify large reimbursements to the agency’s employees, for example.

Here are a couple examples of Vendor Activity Reports from NJ towns that we found on the Internet, so you can see what they look like and how helpful they can be:

Egg Harbor Township’s Vendor Activity Report, located here, lists all vendors for the designated time frame (2015). This type of report is helpful because you can see the total payments made to every single vendor contained in the agency’s accounting software during a specified time period. If you do not know anything about an agency’s finances or which vendors they use, you can ask for the full vendor activity report and learn who the vendors are and how much they were paid. To request this type of report, one would simply say: “Pursuant to OPRA and the common law right of access, I seek the vendor activity or vendor history report for all vendors by vendor name for payments made January 1, 2018 to present date.”

Eagleswood Township’s Vendor Activity Reports, located here on this OPRA Machine request,  provide a breakdown of all payments to an identified vendor during the specified time frame. This type of report is helpful when you know about a vendor already and just want to see how much they were paid during a specific time period. In these reports, the requestor sought the activity report for three specific vendors (newspapers). The reports show all of the payments made to those vendors. To request this type of report, one would simply say: “Pursuant to OPRA and the common law right of access, I seek the vendor activity or vendor history report for all payments made to [Insert Name of Vendor/Company] for January 1, 2018 to present date.”

If you have any questions about this topic, please feel free to contact CJ Griffin at cgriffin@pashmanstein.com

2018 Year in Review

Happy New Year! 2018 was a very busy year for the OPRA team at Pashman Stein Walder Hayden.

Here’s a look back on some of the highlights…

 

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.

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 and challenging a denial of access, please contact 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.

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 “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 Borough’s website had linked to the Facebook pages
  • The officials encouraged the public to “like” the pages in order to get information about the Borough’s business

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

 

Video

Lawsuit for Facebook “Blocked” Lists

It’s a hot button topic: are government officials creating government records that are subject to OPRA when they utilize social media? A judge will soon decide.

CJ Griffin was recently interviewed by Fios 1 News television regarding a lawsuit she filed on behalf of a requestor seeking a list of users that various government officials have blocked from their official Facebook accounts.

The Record also covered the lawsuit.

We think the answer is obvious: if a government official conducts official government business on a social media account (such as updating constituents on official matters), than those accounts are government records and are subject to access under OPRA.

A “block” list is available on both Twitter and Faceook. Sample request language:

“Pursuant to OPRA and the common law, I seek the list of blocked users from the Facebook or Twitter account of _________. The URL of that account is _______________.”

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.

Appellate Division Rules Agencies Cannot Hide Behind Technology

Last week, the Appellate Division issued a published decision that is very important to transparency.  While the court’s analysis of its standard of review over GRC decisions will excite appellate attorneys, it is the more substantive portion of the court’s decision that grabbed our attention.

The case is Conley v. N.J. Dep’t of Corrections, ___ N.J. Super. ___ (App. Div. Jan. 12, 2018), and it involves an OPRA request that was filed by Kevin Conley, an inmate at the New Jersey State Prison.

Mr. Conley’s OPRA request sought “monthly remedy statistical reports” that were required to be produced by N.J.A.C. 10A:1-4.8(a)(4) and other federal laws. He had requested these reports in the past and they were always produced, but this time the DOC responded by saying that it had adopted a new computerized database in January 2014 and the requested monthly reports “are no longer generated or available.”

Mr. Conley objected, noting that he had always gotten the reports before and that the DOC was mandated by law to produce these monthly reports. The DOC continued to deny the request, insisting that it no longer generates the reports and that it was not obligated to “create a record.”

Mr. Conley filed a complaint on his own in the Government Records Council (tip: we advise going to court instead!) and lost. The GRC accepted the DOC Custodian’s certification that it did not possess the monthly reports and ruled that it did not violate OPRA.

The Appellate Division reversed the GRC. It noted that the DOC was mandated by federal and State regulations to make the monthly reports. It held that were it to accept the DOC’s argument that the report was no longer available based on the manner by which DOC chose to store this public data, it would render “the public policy of transparency and openness the Legislature codified in [OPRA] unacceptably vulnerable to bureaucratic manipulation.”

Importantly, the Court held that “[t]echnological advancements in data storage should enhance, not diminish, the public’s right to access ‘government records’ under OPRA . . . . A government agency cannot erect technological barriers to deny access to government records.”

What does this mean for OPRA requestors?  This case builds upon the Supreme Court’s recent holding in Paff v. Galloway, which held that electronically stored information is a government record that must be produced. Where an agency is obligated by law to produce a certain type of report or a specific document each month (or year) and it fails to do so because it has moved to an electronic database, it cannot avoid its obligations under OPRA. It would need to pull data from its database to produce the report/document to the requestor.

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