Category Archives: OPRA Cases

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.

Governor Must Release RSVP Lists for Town Hall Meetings

On February 4, 2015, CJ Griffin of Pashman Stein secured a victory for Harry Scheeler, a prominent open-government activist, in a case against the Office of the Governor which alleged violations of the Open Public Records Act.

In September, Mr. Scheeler requested RSVP lists from Governor Chris Christie’s “town hall” meetings.  The Governor’s Office denied the request, stating that the lists could not be released based on the privacy provisions of OPRA and Executive Order 26.

Mr. Scheeler filed suit in the Superior Court, alleging an OPRA violation.  After litigation, the Governor’s Office released the RSVP lists with names and addresses of the individuals who attended. However, the Governor’s Office insisted that the email addresses for attendees was protected by OPRA’s privacy provisions and thus produced the RSVP lists in redacted form.

On February 4, 2015, the Honorable Mary C. Jacobson, A.J.S.C., heard oral arguments and ruled in Mr. Scheeler’s favor.  Judge Jacobson found that there was no reasonable expectation of privacy for email addresses supplied to a public agency for the purposes of attending a public event or signing up for up for public mailings.   She ordered the Governor’s Office to release the RSVP lists with the email addresses unredacted by February 20, 2015.  The judge also declared Mr. Scheeler a prevailing party entitled to an award of attorneys’ fees.

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

Pashman Stein Secures OPRA Win in Police Shooting Case

Recently, Pashman Stein secured a victory in the case North Jersey Media Group v. Township of Lyndhurst, et al.  Below are links to media covering this important decision, in which the Hon. Peter E. Doyne, A.J.S.C., ruled that the Defendant public agencies violated OPRA and compelled the Defendants to produce records relating to the police shooting of a man in Lyndhurst in September 2014.

http://www.nj.com/bergen/index.ssf/2015/01/judge_orders_release_of_records_in_fatal_bergen_co.html

http://www.northjersey.com/opinion/opinion-editorials/access-to-public-records-1.1194621 

http://www.northjersey.com/news/judge-rules-police-must-avoid-delays-in-public-records-requests-1.1192002

Records of Police Shooting of Black Driver Must Be Made Public

As it appeared on New Jersey Law Journal, January 13, 2015 in regards to Pashman Stein’s representation.

Police records related to the shooting of a black man who was killed by officers after he allegedly rammed them with an SUV must be released to the public immediately and without redaction, a New Jersey state trial judge has ruled, citing the heightened need for public access to information in the wake of the killings of African-American males by police in Ferguson, Mo., and Staten Island, N.Y.

“The defendants’ refusals to disclose and utter lack of cooperation was undoubtedly intensified by the recent national debate fueled by a growing number of highly publicized incidents, including those in Ferguson and Staten Island, where police officers killed African American men, and also the apparent assassination of two New York City police officers by an African-American man,” said Bergen County Assignment Judge Peter Doyne in requiring the New Jersey State Police, the Bergen County Police and three local police departments—Lyndhurst, North Arlington and Rutherford—to release the records under New Jersey’s Open Public Records Act (OPRA).

“Police interaction with the public is now under national review,” Doyne said in the opinion, released Jan. 13. “OPRA’s unfettered access provides an important tool in the public’s arsenal, conferring the ability to gain access to information prior to prosecutorial decisions concerning what, if any, actions are to follow.”

Doyne said OPRA’s mandate of access to public records “cannot be precluded by an all-encompassing assertion of the need for an investigation to proceed in darkness” and called public access a worthy goal, and “a requirement so as to ensure an informed citizenry,” adding that failure to uphold that goal “would be an abandonment of judicial responsibility.”

Doyne emphasized that he was not deciding whether the police in the New Jersey shooting acted properly, calling that a determination “left to the professionals at the New Jersey State Police and Attorney General’s Office … at least in the first instance.”

The disputed records concern the fatal shooting last Sept. 16 of a 23-year-old Newark man, Kashad Ashford, who was driving the SUV, according to court documents. The police began chasing him in Lyndhurst based on a report of an attempted car theft in nearby North Arlington and the roughly four-minute pursuit ended in Rutherford when Ashford crashed into a guardrail and allegedly became stuck.

The police claimed Ashford, who was surrounded by police cars, revved the engine and reversed in the direction of the police cars, striking one of them and causing officers to open fire, according to court documents. Some bullets struck Ashford, who was taken to a hospital where he was pronounced dead several hours later.

That same day, the Attorney General’s Office took charge of investigating the shooting, as required by a 2005 directive, and issued a press release with details about the incident.

Within a day or two of the shooting, reporters from North Jersey Media Group (NJMG) filed OPRA requests with all five police entities seeking more information. NJMG publishes The Record, Herald News and about 40 weekly community newspapers and operates three news websites.

The NJMG asked for records such as use of force reports, arrest reports, crash reports, and various types of audio and video recordings including 911 calls, computer-aided police dispatches and recordings from mobile recording devices.

Lyndhurst, North Arlington and Bergen County refused to turn over anything on the ground of the ongoing attorney general investigation, according to court documents. Rutherford initially took the same position but later released some records, including dispatch and property reports and CDs containing phone calls from the public about its own police transmissions. It also supplied several redacted investigation reports and an index with the reasons for the redactions, which included the exemptions for the privacy interest, criminal investigations and ongoing investigations.

The state police asked for more time and on Dec. 22, released the 911 call about the attempted car theft and a redacted version of the computer-aided dispatch reports from Lyndhurst, North Arlington and Bergen, according to court documents.

The Attorney General’s Office asserted there was an active criminal investigation into the initial theft report and whether any of the officers involved in the shooting used unlawful levels of force and that it plans to present that question to a grand jury.

On Nov. 3, NJMG filed its records suit with an order to show cause, seeking release of the records under OPRA and the common law, subject to redactions if needed with an explanation of why they are necessary.

It also asked for the identity of any records withheld and the “specific basis therefor” or alternatively, in camera review.

The county and local departments informed Doyne they would rely on the papers filed by the state, which is represented by Deputy Attorney General Daniel Vannella.

In ruling for NJMG under both OPRA and the common-law balancing test, Doyne remarked that the defendants’ “hide the key” approach to the requests, which included directing NJMG to as many as six different people to obtain clarification of the denial, “discolors the court’s review.”

Their “blanket assertion that no responsive records must be disclosed under OPRA and this matter should be dismissed disregards not only published precedent and statutorily defined duties, but also the clear public policy embodied by OPRA,” Doyne said.

The state police’s repeated extensions of its own time to respond without a reasonable explanation or basis amounted to a denial under OPRA, which requires disclosure within seven business days, Doyne said.

At oral argument Jan. 9, the state conceded that NJMG had a right to the records but claimed that its Sept. 16 press release had all the information to which the public was entitled.

Doyne rejected that argument, saying even though NJMG was able to report on the shooting based on the press release, it still had the right to the responsive records so it could review them itself.

In addition, the ongoing-investigation exemption, which requires that disclosure be inimical to the public interest, did not apply because the only alleged harm—that it might corrupt the recollection of a potential witness—did not overcome the right of access, Doyne said.

“In the shadow of numerous incidents and subsequent protests surrounding killings of African-American men by police officers, the public interest is in being informed of details of such an incident,” Doyne noted.

The criminal-investigation exemption also did not apply because the state failed to show that the records sought were ones not required by law to be made, Doyne said.

Doyne ruled that the common law too required disclosure because the need for access outweighed the defendants’ interest in confidentiality. He required that the records be released without redaction because the defendants never asked for in camera review to determine if the records were rightfully withheld or should be turned over with redactions. They thus waived the right to supply redacted versions, Doyne said.

NJMG’s lawyer, C.J. Griffin of Pashman Stein in Hackensack, N.J., said her client hopes the records will reveal details not yet provided, such as how many shots were fired, whether Ashford had a weapon, and how many officers fired the shots, as well as their names and departments.

Griffin said she will seek legal fees, as allowed by OPRA and expressly authorized by Doyne.

Attorney General’s Office spokesman Lee Moore said in a statement, “We are reviewing our options.”

Rutherford’s attorney, David LaPorta of LaPorta & LaPorta in Lyndhurst, declined to comment.

None of the other lawyers for the defendant police departments responded to a request for comment.

Read more: http://www.njlawjournal.com/id=1202715072427/Records-of-Police-Shooting-of-Black-Driver-Must-Be-Made-Public#ixzz3Onn82ipE

 

Pashman Stein Mentioned: Sparta BOE gets chance to tell it to the judge

Please see link to article:

http://www.njherald.com/story/27532482/2014/12/02/sparta-boe-gets-chance-to-tell-it-to-the-judge

Can a Public Agency Charge for Records?

Whether a public agency can charge for records provided in response to an OPRA request depends on the circumstances.  There are important guidelines to remember.

  • Electronic copies of records should ordinarily be free of charge, so most requestors seek them in that format. When making your request, simply ask that the records be emailed to you.
  • If a requestor wants a hard copy of a record, the public agency may charge 5 cents per letterhead size copy and 7 cents per legal paper size copy. A public agency may not charge more unless they can prove that their “actual costs” are higher.
  • If the requestor wants the government record in a format not already maintained by the public agency, the public must convert the record to that format. If the conversion requires a substantial amount of manipulation or programming by IT, the public agency could charge a “special service charge.”  This special service charge also must be the “actual cost” to the agency, i.e. the cost of the labor needed to perform the conversion.  It is rare that this service charge applies and the public agency must first contact you to advise what the charge will be and give you the opportunity to object.
  • In all instances, the public agency may not charge more than the “actual cost” of producing the record. So, for example, if you request an audio tape of a public meeting, the public agency can only charge you the cost of the tape. The public agency cannot make a profit off of your request.
  • Finally, victims of crime can request copies of the police reports at no cost.

Business Improvement Districts Must Designate Records Custodians

Over the past few years, New Jersey courts have expanded the definition of “public agency” under the Open Public Records Act (“OPRA”) so that it covers more than what is traditionally thought to be a government agency (i.e. municipalities and state agencies).  Through a series of cases, our courts have made it clear that non-profit corporations can be subject to OPRA if they serve as an “instrumentality” of a public agency.

Last week, the Hon. Judge Peter E. Doyne held that the Rutherford Downtown Partnership (“RDP”), a non-profit organization that manages the Borough of Rutherford’s Business Improvement District, is subject to OPRA.  Most importantly, Judge Doyne’s decision addresses what steps such a non-profit organization must do in order to comply with OPRA.

Plaintiff Patricia Gilleran submitted a records request to RDP. After receiving no response within seven business days, CJ Griffin of Pashman Stein filed litigation on her behalf.  In opposition to Plaintiff’s litigation, the RDP claimed it sent Plaintiff an email notifying her that it does not handle OPRA requests, that she must contact the Borough of Rutherford, that it would not forward her email to the Borough, and that she should not respond. Plaintiff certified that she never received this email.

Judge Doyne found that RDP’s alleged email was insufficient. He held that OPRA required the RDP to designate a records custodian and to forward Ms. Gilleran’s request to the custodian or to tell her specifically who the custodian is, rather than simply directing her to the Borough.

Records requestors should take away several things from this decision. First, the simple fact that an entity is non-profit organization does not mean it is not subject to OPRA. To determine whether the non-profit might be considered subject to OPRA, requestors should consider whether the mayor or town council appoints the organization’s board members; whether the non-profit’s budget consists heavily of “public funds;” whether the non-profit was created by local ordinance or state statute; and, the level of control a public agency exerts over the non-profit.

Second, when making an OPRA request to a non-profit organization, be aware that the non-profit must either forward your request to its custodian or specifically tell you the name of the custodian.  If you do not receive a response within seven business days, it is imperative that you immediately contact an attorney to assist you in obtaining the records as the law allows only 45 calendar days from the date of denial to file a lawsuit in Superior Court.

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