Category Archives: OPRA Q&As

A3626 Will Hinder Transparency Over Police Shootings

OPRA permits agencies to withhold most criminal investigatory records, but requires them to disclose certain enumerated information to the public:

if an arrest has been made, information as to the name, address and age of any victims unless there has not been sufficient opportunity for notification of next of kin of any victims of injury and/or death to any such victim or where the release of the names of any victim would be contrary to existing law or court rule. In deciding on the release of information as to the identity of a victim, the safety of the victim and the victim’s family, and the integrity of any ongoing investigation, shall be considered;

if an arrest has been made, information as to the defendant’s name, age, residence, occupation, marital status and similar background information and, the identity of the complaining party unless the release of such information is contrary to existing law or court rule;

information as to the text of any charges such as the complaint, accusation and indictment unless sealed by the court or unless the release of such information is contrary to existing law or court rule;

information as to the identity of the investigating and arresting personnel and agency and the length of the investigation;

information of the circumstances immediately surrounding the arrest, including but not limited to the time and place of the arrest, resistance, if any, pursuit, possession and nature and use of weapons and ammunition by the suspect and by the police; and

information as to circumstances surrounding bail, whether it was posted and the amount thereof.

[N.J.S.A. 47:1A-3(b).]

This disclosure requirement permits the public to know information about crimes that have occurred in their communities.

Currently pending in the Legislature is A3626, which amends N.J.S.A. 47:1A-3(b) to provide that “personal identifying information of violent crime victims and witnesses are confidential.”  “Personal identifying information” is defined as including, but not limited to the following information about the victim of a violent crime (“a crime involving force or the threat of force”):  “identity, name, home and work addresses, home and work telephone numbers, home and work fax numbers, social security number, driver’s license number, email address, or social media address of a violent crime victim or witness.”

Unfortunately, A3626 will significantly decrease transparency in the State, specifically with regard to police-involved shootings. It is not implausible to think that agencies will argue that officers who witness another officer shoot a suspect are now “witness[es] to a violent crime” (or potential violent crime, as all police-involved shootings are investigated for criminality).  Even under the current statutory scheme, agencies already deny access to the names of officers involved in shootings and other uses of force. See North Jersey Media Group Inc. v. Twp. of Lyndhurst, 441 N.J. Super. 70 (App. Div.), leave to appeal granted, 223 N.J. 553 (2015) (agency argues that public has no right to use of force reports or names of officers involved in shooting a suspect).

Moreover, given that A3626 exempts the identity of a victim, it also plausible that agencies will begin refusing to release information about a specific crime because their response would confirm that a specific person was a victim to the crime. For example, if the media is aware that John Doe was brutally shot and makes a request for Section 3(b) information about John Doe’s shooting, agencies might “neither confirm nor deny” that such shooting occurred because responding to the request would confirm that John Doe was a victim and such information would be exempt under A3626. See North Jersey Media Group Inc. v. Bergen County Prosecutor’s Office, 447 N.J. Super. 182 (App. Div. 2016) (permitting agencies to “neither confirm nor deny” the existence of complaints against a specific person where such information is exempt).

While it’s clear that the Sponsors of the bill simply want to protect victims of crime, A3626 is not needed. Most of the actual personal information that A3626 exempts is already exempt, such as social security numbers, telephone numbers, and driver’s license numbers.  See N.J.S.A. 47:1A-5(a).  Moreover, as it is currently written, N.J.S.A. 47:1A-3(b) already permits an agency to withhold the identity of the victim it the agency determines releasing the information “will jeopardize the safety of any person or jeopardize any investigation in progress or may be otherwise inappropriate to release.”

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

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What Personnel Records Can I Obtain Under OPRA?

Personnel records are a category of government records that shine significant light on the workings of government (including misconduct and corruption), but unfortunately our Legislature made most personnel records off limits when it enacted OPRA.  So, what records can you get?

Section 10 of OPRA makes personnel and pension records generally off limits, but it provides three exceptions.  Today, we will discuss the first exception.

The first exception provides that:  “an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record.”

This means that basic requests for a paystubs, year-end payroll reports, lists of employees, etc., must be granted.   But, this exception can actually provide very helpful information where an employee separates from government employment on suspicious grounds.

Too often, government employees engage in some sort of alleged wrongdoing, but work out an agreement with the governing body that they will simply resign on good terms rather than be terminated. The public is often left in the dark about the real reason why the person left, but the personnel record’s first exception can prove helpful.

The public is entitled to know an employee’s “date of separation and reason therefor,” which is language that was incorporated into OPRA from Executive Order No. 11 (1974).  Our Supreme Court has interpreted this very phrase to mean something more than just telling the public that an employee “resigned.”  Rather, “reason therefor” means the REAL reason the employee resigned – i.e., because several employees accused him of discrimination and misuse of government property and a resignation was agreed upon in exchanged for those employees not suing.

In South Jersey Publishing Co. Inc. v. New Jersey Expressway Authority, 124 N.J. 478 (1991), newspapers reported that an executive director of the N.J. Expressway Authority was under investigation for misuse of credit cards.  The Authority held a closed session meeting with the executive director to discuss the results of the investigation and to work out an agreement for him to separate from employment.  Ultimately, the Authority agreed that the executive director would be paid his full salary, pension, and health care through the end of the year and that the agreement would remain confidential.   The newspapers sought access to the agreement and the closed session minutes, but the Authority denied access to both.  The New Jersey Supreme Court ruled that the agreement and closed session minutes were accessible, because the “date of separation and reason therefor” included the results of the investigation into misconduct.  The Court rejected the notion that simply informing the public that the executive director had a “voluntary separation” was sufficient and held that “[w]ithout disclosure of the reasons for [the executive director’s] ‘voluntary separation’ from the Authority, the public cannot intelligently make [an evaluation into the reasonableness of the Authority’s agreement with the executive director.]”

Because the Legislature incorporated the “date of separation and reason therefor” directly from Executive Order No. 11, principles of statutory construction inform that the Legislature thus also intended to incorporate case law interpreting and applying Executive Order No. 11.  Thus, South Jersey Publishing Co. is binding and applicable in an OPRA case.

If an employee or public official in your town “resigns” and it seems like something else was going on, we recommend filing an OPRA request seeking closed session minutes, memorandums of understanding or settlement agreements, and the employee’s “date of separation and reason therefor.”

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

 

The Status of Access to Police Records:  O’Shea, NJMG v. Lyndhurst, and Paff v. OCPO

In enacting OPRA, the Legislature created two exemptions for police records.  The first exemption is the “ongoing investigation exemption.” N.J.S.A. 47:1A-3(a).  For that exemption to apply, an investigation must be ongoing and the police agency must prove that release of the records would be “inimical to the public interest.”   Even if the police do prove that releasing the records while the investigation is ongoing would be harmful, ultimately the records must be released after the investigation concludes.

OPRA’s other exemption, the “criminal investigatory records” (CIR) exemption, is much more stringent.  If a record constitutes a CIR, then it is forever exempt from access.  The statute defines a CIR as one that is 1) “not required by law to be made, maintained, or kept on file” and 2) which “pertains to any criminal investigation or related civil enforcement proceeding.”  N.J.S.A. 47:1A-1.1.   Both elements must be met in order to shield the record from the public.

Because the very first line of OPRA instructs that “any limitations on the right of access . . . shall be construed in favor of the public’s right of access,” courts have always applied the CIR exemption narrowly.  Accordingly, since 2009, the courts have held that the Attorney General’s Guidelines are “laws” that negate the “not required by law to be made, maintained, or kept on file” element of the CIR exemption.  Thus, records such as Use of Force Reports (UFRs) have been publicly accessible since the AG’s Use of Force Policy requires every officer in the state to complete a UFR after he uses any level of force against a citizen.  See O’Shea v. Twp. of W. Milford, 410 N.J. Super. 371 (App. Div. 2009).

That all changed in 2015, when another panel of the Appellate Division disagreed with O’Shea and held that only duly promulgated regulations, executive orders, statutes, or judicial decisions constitute “laws” for purposes of the CIR exemption.  See North Jersey Media Group Inc. v. Twp. of Lyndhurst, 441 N.J. Super. 70 (App. Div.), leave to appeal granted, 223 N.J. 553 (2015). Thus, the court held that even if an AG Guideline requires every officer in the state to make a certain record, that record still is not accessible to the public because it was not required to be made by a “law.”  It also applied the second element of the CIR exemption so broadly that if a record even tangentially relates to a criminal defendant, the court held that it “pertained to any criminal investigation.”  The Appellate Division’s decision in NJMG v. Lyndhurst has been detrimental to transparency because it has rendered nearly every police record off limits!

Since NJMG v. Lyndhurst was decided, agencies have had justification to deny access to UFRs and other police records.  Technically, though, trial courts are not bound by NJMG v. Lyndhurst and could instead apply O’Shea.  This is because when there are conflicting Appellate Division opinions, a trial court is free to choose which decision to apply.  Last week, a third published Appellate Division decision involving the CIR was issued, giving the trial courts another decision to choose from.  See Paff v. Ocean County Prosecutor’s Office, __ N.J. __ (2016).

The Paff court expressly disagreed with NJMG v. Lyndhurst.  It instead held that not only are AG Guidelines “laws” that satisfy the “required by law to be made, maintained or kept on file” standard, but so are local policies and directives from a Chief of Police.  The Paff court also disagreed with NJMG v. Lyndhurst’s holding that “an officer’s decision to activate a [dash cam] to document a traffic stop or pursuit of a suspected criminal violation of the law may make the recording ‘pertain to a criminal investigation, albeit in its earliest stages.’”  Thus, per Paff, dash cam footage is accessible and UFRs would be accessible.

Because there was a dissent in Paff, the case automatically goes to the Supreme Court.  The Supreme Court also accepted the plaintiff’s appeal in NJMG v. Lyndhurst.  While trial courts are free to apply either O’Shea/Paff or NJMG v. Lyndhurst at the present moment, ultimately the Supreme Court will issue decisions which will be binding upon every court in the state.   Those landmark decisions will define the scope of access to police records and determine how transparent the police must be.

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

My OPRA Request Was Denied. Now What?

OPRA requires public agencies to respond within 7 business days of your request. (Tip: Begin counting the first business day after you filed the request).  A public agency must respond within 7 business days and either: 1) Produce responsive records; 2) Tell you that access is being denied and reason for the denial; or 3) Ask for an extension of time to respond.

But what do you do if the government fails to respond (a deemed denial) or denies access to a record that you know is not exempt?

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.  The most important thing to remember is that your action must be filed within the statute of limitations, which is 45 days. The process for filing a lawsuit in Superior Court is as follows:

  1. A Verified Complaint and Order to Show Cause is filed.  Each county has a designated “OPRA Judge” who will hear the matter.
  2. The OPRA Judge will review and sign the Order to Show Cause, which sets a briefing schedule and a hearing date.
  3. The pleadings are then served upon the public agency and custodian.
  4. Often, a public agency may work with your attorney to settle the case by producing records and paying the attorneys’ fees.
  5. If the parties are unable to settle, the agency will file an answer and opposition to your lawsuit.
  6. Your attorney then has an opportunity to file a reply brief
  7. 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. In certain circumstances, the court may allow for discovery (interrogatories, depositions) to occur.
  8. If you win, the Judge will order the agency to produce records to you and your attorney will file a fee application asking the Court to order the agency to pay your counsel fees and costs of suit.  (Many attorneys, like Pashman Stein Walder Hayden, represent requestors on a contingency basis which means that if you lose, you will not owe any counsel 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 (or, if the agency fails to respond, the date the response was due).

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

 

 

A Public Agency Must Tell You What Records Exist

Pursuant to Section 5 of OPRA, a public agency must state the “specific basis” for denying access to government records.  Those who request records frequently, however, know that it is not uncommon for a public agency to issue a blanket denial when you’ve requested a volume of records, rather than telling you specifically why each requested record is being withheld.  Yesterday, a court awarded attorneys fees to Pashman Stein in litigation against a public agency who had refused to tell Plaintiff John Paff whether there were records responsive to his request and instead kept making blanket assertions that “any such records” would be exempt as internal affairs records.  You can read more about the decision in Paff v. Township of Stafford on Mr. Paff’s blog.

In making a blanket assertion that any and all records are exempt from access, a public agency not only violates the plain language of Section 5 of OPRA, but also deprives the requestor the ability to determine whether or not he might be entitled to the records under OPRA or the common law right of access.  It also places the requestor in the position of filing suit and then finding out that the records did not even exist in the first place.   In such instances, our courts have still awarded fees to requestors because the public agency’s negligence in not telling the requestor that the record did not exist essentially lured the requestor into litigation.

For example, in Kelley v. Borough of Riverdale, MRS-L-524-14 (Law Div. April 11, 2014) the plaintiff had requested numerous emails that were sent to and from municipal employees, including the custodian regarding litigation.  The custodian responded that plaintiff requested “court records that I cannot and do not have authorization to send you.”  Plaintiff sued.  In opposition to suit, the agency responded that the records, in fact, did not exist and that “as there are no documents to be ‘disclosed,’ this matter should be dismissed.”  The trial court still found an OPRA violation and awarded the plaintiff attorney fees, stating that had the agency not been negligent in giving the requestor an incorrect response to his OPRA request he would not have sued.

Paff v. Stafford and Kelley v. Borough of Riverdale are just two examples of a court finding an OPRA violation for a public agency’s negligence in failing to properly respond to an OPRA request.  This negligence not only deprives an OPRA requestor of the ability to access whether the denial of access was lawful, but also ultimately results in an expenditure of taxpayer funds when the requestor sues.

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

Are Facebook Posts and Other Computer Records Subject to OPRA?

As the number of public agencies with a social media presence grows, questions arise regarding whether the content of the social media sites is a “government record” subject to OPRA.  We believe that it is.

OPRA defines government records very broadly and includes “information stored or maintained electronically.”  This should cover posts made on a public agency’s official Facebook page, as well as information such as web browser history on computers used by public employees during their official course of business. Computers are, in other words, electronically storing everything a public employee does during the course of his or her day and that activity creates government records – be it posting on a Facebook page or entering data into budgeting software.  At least one court has held that “metadata” is subject to OPRA.

The difficulty, however, is how to gain access to such information.  Though all government records should be retained and public agencies should go through the proper process for disposing such records, employees tend to treat data with less care than hard copy records.  So, electronic records are often deleted and may not always be retrievable from the server.

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.

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.

Be Careful Citing Statutes in OPRA Requests

It is common that a requestor will seek a record that is required by law to be made.  Thinking that she is being helpful to the Records Custodian and making her request clearer, the requestor will often cite the particular law when making her request.  Requestors who do this should be careful, as Records Custodians will often deny the request on the basis that it requires them to perform “research.”

A good example of this issue occurred in the case Bart v. Passaic County Public Housing Agency, 406 N.J. Super. 445 (App. Div. 2009).  There, the requestor (Bart) sought “signs currently posted in conformance with N.J.S.A. 47:1A-5(j),” which is a provision of OPRA that requires the public agency to post a sign telling requestors of their right to appeal the denial of an OPRA request.

The County responded and provided documents, but not the signage that Bart was seeking.  He filed a denial of access Complaint with the Government Records Council (GRC), which held that there was no violation because the request was invalid.

On appeal, the Appellate Division affirmed the GRC’s decision. The court held that a requestor must identify the records sought with “specificity” and that Bart’s request would have required the custodian to perform legal research to determine exactly what type of sign N.J.S.A. 47:1A-5(j) required in order to provide a response to Bart’s request.

It is important to remember that custodians are only required to search their files, not perform research.  Even if a requestor feels that she is being more helpful by citing to a statute, or attempting to prove that the record must exist, be careful in citing to a statute. Rather, describe the document specifically, stating what type of record it is and what type of information it contains. If the custodian denies the request or says that such a record does not exist, then it would be proper to respond to the custodian, cite the statute, and state that the record therefore must exist.

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