Category Archives: jails

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.

 

 

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On June 4, 2018, the Appellate Division issued an unpublished OPRA opinion titled Benedetto v Russo and Union County. While the opinion is not binding on lower courts because it is unpublished, we think it is helpful in several ways.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

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.