Category Archives: opra

OPRA’s Deadlines are Relaxed During States of Emergency

On March 20, 2020, Governor Murphy signed a series of coronavirus-related bills into law. Among them was A3849, which modifies the deadline by which public agencies must respond to an OPRA request during an emergency.

Under normal circumstances, a public agency must respond to an OPRA request as soon as possible and no later than seven business days from the date of the request. The amendment provides that:

During a period declared pursuant to the laws of this State as a state of emergency, public health emergency, or state of local disaster emergency, the deadlines by which to respond to a request for, or grant or deny access to, a government record under paragraph (1) of this subsection or subsection e. of this section shall not apply, provided, however, that the custodian of a government record shall make a reasonable effort, as the circumstances permit, to respond to a request for access to a government record within seven business days or as soon as possible thereafter.

In other words, where there is declared emergency, a public agency need not respond during seven business days. Instead, it must only make a “reasonable effort” to respond within seven business days or as soon as it is able to do so.

Those who frequently file OPRA requests know that agencies already frequently fail to comply with OPRA’s deadlines. We have written about about agencies taking multiple extensions before and and we have even sued and obtained rulings finding that certain agencies have engaged in a “pattern and practice” of violating OPRA’s statutory time frames. Frankly, many wonder why this bill was necessary in light of the fact that agencies already routinely take extensions.

In our minds, though, this new bill evidences a very clear legislative intent that agencies should always comply with OPRA’s statutory seven-day deadline and that any “reasonableness” arguments for a delay should be rejected unless there is a declared emergency. We hope the courts and GRC will agree and put an end to agencies automatically granting themselves endless extensions.

To contact us about this blog post or discuss an OPRA denial, email cgriffin@pashmanstein.com or visit the “contact us” tab above.

Accessing Personnel Records

OPRA’s personnel records exemption, N.J.S.A. 47:1A-10, renders most personnel records generally exempt from access under OPRA. The exemption contains three exceptions, however.

Exception 1

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 provision obviously means that requests for an employee’s individual paystub or an agency’s weekly, monthly, or year-end payroll reports are available. Additionally, an agency must disclose each employee’s date of hire, title, position, salary, and date of separation. All of this information is important to know, as payroll is often one of the biggest expenditure in most agency budgets.

Within the next year, we should see resolution on what the phrase “date of separation and the reason therefor” means because the Supreme Court has granted certification in a case that asks the “name” of a state trooper who was “required to separate from employment” due to racially offensive behavior.  We believe this provision permits the public to learn about employees who engage in misconduct. For more information about that case and the issue the Supreme Court will be deciding, please read our prior blog.

Exception 2

The second exception provides that:

“personnel or pension records of any individual shall be accessible when required to be disclosed by another law, when disclosure is essential to the performance of official duties of a person duly authorized by this State or the United States, or when authorized by an individual in interest.”

This exception has been largely un-litigated and thus the courts have still not defined the scope of this exception. In McGee v. Twp. of E. Amwell, 416 N.J. Super. 602 (App. Div. 2010), the Appellate Division held that emails about an employee were “personnel records” even though they were not filed in a personnel folder and that Exception 2 would permit the employee to request them because she would be an “individual in interest” who could authorize the release. Other courts have ruled similarly—employees can request their own personnel records, which includes emails that discuss their performance.

Exception 3:

The third exception provides that:

data contained in information which disclose conformity with specific experiential, educational or medical qualifications required for government employment or for receipt of a public pension, but not including any detailed medical or psychological information, shall be a government record.

In Kovalcik v. Somerset Cty. Prosecutor’s Office, 206 N.J. 581 (2011), the Supreme Court held that this exception does not authorize disclosure of all records that “evidence an employee’s educational background or even that evidence an employee’s participation in educational pursuits generally.”  Rather, the Court held that the exception makes available only records “that would demonstrate that a government employee lacked a required credential and therefore failed to meet the minimum qualifications for the position.”

In other words, if there is a certain training certificate, license, or degree that must be obtained in order to hold a government position (or to receive a promotion), then the public is entitled to access documents that prove whether or not the employee meets those requirements. Thus, because all police officers in New Jersey are required to take use of force trainings, the public is entitled to obtain documents proving those courses were taken. But, if an officer takes an optional course those records are not subject to OPRA, even if the agency paid for the training. (You can, of course, request a copy of the invoice or other financial documents that prove how much was spent).

 

To contact us about this blog post or discuss an OPRA denial, email cgriffin@pashmanstein.com or visit the “contact us” tab above.

It’s Sunshine Week!

Sunshine Week, which runs from March 15 to March 21, 2020, is an annual nationwide celebration of access to public information. There are many ways that you can get involved–from filing OPRA requests, to writing a letter to the editor, to attending a public meeting. On this blog, we will write several times this week about transparency topics and success we have had recently shedding light on New Jersey government!

Sunshine-Week-Cohen--600x460

To contact us about this blog post or discuss an OPRA denial, email cgriffin@pashmanstein.com or visit the “contact us” tab above.

NJ Supreme Court grants certification in OPRA case regarding identity of State Trooper who engaged in “racially offensive” behavior

The New Jersey Supreme Court has granted an OPRA requestor’s Petition for Certification and agreed to hear an appeal in Libertarians for Transparent Government v. New Jersey State Police.

The question the Court certified is:

“Does section ten of the Open Public Records Act, N.J.S.A. 47:1A-10, require disclosure of the name of a state trooper listed in the Office of Professional Standard’s annual report to the Legislature as having been terminated for misconduct?”

For background, N.J.S.A. 47:1A-10 states that personnel records are generally exempt under OPRA, but provides three exceptions to the exemption. At issue in this case is the first exception, which states 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”

Each year, the Office of Professional Standards of the New Jersey State Police issues a public report detailing major discipline that is imposed upon State Troopers.  The 2015 report disclosed the following:

Member pled guilty to acting in an unofficial capacity to the discredit of the Division while off-duty by having questionable associations, engaging in racially offensive behavior and publicly discussing police patrol procedures. The member was required to forfeit all accrued time and separate from employment with the Division.

Upon reviewing that report, the requestor filed an OPRA request asking for the Trooper’s name, title, date of separation and the reason therefor, pursuant to N.J.S.A. 47:1A-10. The State Police denied the request, arguing that it was exempt pursuant to N.J.S.A. 47:1A-10 and the Attorney General’s Internal Affairs Policies & Procedures.

Pashman Stein Walder Hayden partner CJ Griffin sued on behalf of the requestor and argued that “date of separation and the reason therefor” meant that the public is entitled to know the real reason a particular employee separated from employment. In this case, the State Police gave the reason, but would not provide the name or date of separation, frustrating the statute’s purpose. Clearly, the public has a significant interest in knowing the identity of a Trooper who engaged in “racially offensive behavior.” Moreover, the the phrase “required to . . . separate from employment” makes it unclear whether the Trooper was fired or whether he or she was permitted to retire in good standing and move on to another law enforcement position.

Griffin argued that disclosure of the Trooper’s name was required pursuant to the New Jersey Supreme Court’s decision in South Jersey Publishing Co. v. New Jersey Expressway Authority, 124 N.J. 478 (1991), a unanimous opinion written by retired Supreme Court Justice Gary S. Stein. In that case, it was widely rumored that the agency’s executive director was under scrutiny for misusing government credit cards.  The agency met in executive session and discussed its investigation into the matter, then worked out an agreement by which the executive director would “resign in good standing” and receive payment of his salary and fringe benefits for nearly a year after his “resignation.” OPRA did not exist at the time, but Executive Order No. 11 (EO 11) contained language essentially identical to N.J.S.A. 47:1A-10 and required disclosure of an employee’s “date of separation from government service and the reason therefor.”  Applying that provision of EO 11, the Court found it was insufficient for the agency to simply tell the public that there was a “resignation” or “voluntary separation,” but rather that it must disclose “the results of the [agency’s] investigation.”  The Court recognized that disclosure of such information was necessary so that the public could intelligently make an evaluation of whether the agency acted reasonably in permitting the executive director to resign in good standing with several months of salary and benefits.

Unfortunately, in this case, the trial court and Appellate Division both affirmed the State Police’s denial of access. Neither court addressed the New Jersey Supreme Court’s decision in South Jersey Publishing. The Supreme Court will now hear the requestor’s appeal.

The successful Petition for Certification can be found here. Amicus curiae briefs are due on December 26, 2019.

NY Times: Newspapers Should Litigate Public Records Suits

The New York Times published an great article yesterday, titled “How The Times Uses FOIA to Obtain Information The Public Has A Right To Know.” The article explains why the Times firmly believes that challenging an agency’s response to a public records request is important to transparency.

Key quote:

Although smaller newspapers usually do not have in-house counsel to litigate public records lawsuits, in New Jersey OPRA provides a fee-shifting mechanism to make it possible for to find competent counsel who will litigate denials on a contingency basis. Newspapers, journalists, and other media entities can take advantage of this fee-shifting provision to challenge denials of access without incurring any costs at all. As the Times notes, doing so greatly benefits the public and is an important part of the journalistic process.

P.S.  Remember – you only have 45 days to challenge a denial.

For more information, contact CJ Griffin.

 

Judge rules North Arlington improperly imposed service charge for Facebook records

Last week, Bergen County Assignment Judge Bonnie J. Mizdol issued an opinion finding that the Borough of North Arlington unlawfully imposed a special service charge upon a records requestor who sought records from the Borough’s Facebook pages.

The OPRA request at issue in Wronko v. North Arlington sought the list of individuals who had been banned from the Borough’s Facebook page, as well as a list of any words that had been censored and the list of page administrators. In response, the Borough insisted it needed to use an outside IT consultant to capture the screenshots necessary to fulfill the request, which would cost $200 for 2 hours of time.

OPRA permits a special service charge only in limited circumstances. Specifically, N.J.S.A. 47:1A-5(d) provides that:

If a request is for a record: . . . requiring a substantial amount of manipulation or programming of information technology, the agency may charge, in addition to the actual cost of duplication, a special charge that shall be reasonable and shall be based on the cost for any extensive use of information technology, or for the labor cost of personnel providing the service, that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both.

Otherwise, “electronic records and non-printed materials shall be provided free of charge.” N.J.S.A. 47:1A-5(b)(1).

After hearing expert testimony from both parties, Judge Mizdol concluded “that production of the requested documents does not require a substantial amount of manipulation of information technology.”  The court found that capturing screenshots of the Facebook pages that contained the list of banned users and censored words “did not require any expertise in the field of information technology” and that any person with a “basic level of computer skills” would be able to fulfill the request by utilizing Facebook’s “Help” pages or a “simple Google search for ‘how to take a screenshot.'”

Importantly, the Court noted that it is imperative that agencies be able to fulfill modern day OPRA requests:

OPRA requests increasingly involve information technology in this digital age. Those hired to serve as an OPRA Records Custodian, thus, must have the requisite skills to reply to requests for government records located on such digital platforms. If a custodian does not have such skills, the municipality has the ability to rely on information technology experts or hire third party help. However, shifting costs related to same [to the requestor] requires the presence of a substantial amount of manipulation on information technology.

Unfortunately, the imposition of special service charges seems to be on the uptick. Many requestors may simply walk away from a request if the agency seeks to impose a significant fee, but it is possible to challenge the fees in court. In this case, Judge Mizdol ordered the agency to release the records without any fee and to pay the requestor’s legal fees.

 

Lawsuit Challenges Essex County Prosecutor’s Refusal to Disclose Police Videos and Name of Newark Officer Who Fatally Shot Fleeing Motorist


Last week, CJ Griffin filed an OPRA lawsuit on behalf of Richard Rivera against the Essex County Prosecutor’s Office (ECPO) relating to its refusal to disclose the name of a Newark police officer who shot at a fleeing vehicle during a pursuit in January 2019, killing the driver and injuring the passenger. The lawsuit also seeks access to footage from police body-worn cameras and dash cameras.

ECPO denied the request because it is “concerned” that the officer may refuse to testify before the grand jury if his or her name is publicly disclosed. Mr. Rivera’s lawsuit argues that this is not a lawful basis for denying access to the information and videos and that transparency is important when police-involved shootings occur.

In 2017, we won an appeal in the New Jersey Supreme Court on a similar issue in North Jersey Media Group v. Township of Lyndhurst, 229 N.J. 541 (2017). In Lyndhurst, the Supreme Court ruled that the public was entitled to learn the identities of the police officers involved in fatal shootings and see videos of those incidents “shortly after the incident,” after investigators “have interviewed the principal witnesses who observed the shooting and are willing to speak to law enforcement.” The Court stated that disclosure should ordinarily occur “within days of an incident, well before a grand jury presentation or possible trial.” In coming to such conclusions, the Court stated that the public has a significant interest in knowing the details about police-involved shootings and that non-disclosure of such information can undermine confidence in law enforcement.

As we previously wrote, in February 2018, the Attorney General issued Law Enforcement Directive 2018-1 to codify the Supreme Court’s decision.  The Directive states that videos of police-involved shootings should be released when the “initial investigation” is “substantially complete,” which means that the principal witnesses have been interviewed and the evidence has been gathered. This should “typically will occur within 20 days of the incident itself.” Only in extraordinary circumstances could a video be withheld longer than 20 days.

In this case, the police-involved shooting occurred on January 28, 2019 and ECPO still refuses to release the officer’s identity or the police videos more than three months later.

NJ Advance Media has written an article about the lawsuit, which provides more details about the underlying shooting incident. A hearing date has not yet been set by the court.

*Photo by Matt Popovich on Unsplash

“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:

Court: Carteret Mayor’s Facebook Page is Subject to OPRA

In September 2018, we filed a lawsuit on behalf of long-time client Steven Wronko seeking the list of users that Carteret Mayor Daniel J. Reiman has banned from his Facebook page.

Carteret opposed the lawsuit, arguing that Mayor Reiman’s Facebook page was simply a personal page and that he has constitutional right to ban members of the public and a privacy interest in keeping the ban list secret.

We responded and provided over 200 pages of screenshots from the Mayor’s Facebook page which showed that Mayor Reiman used his Facebook page to declare weather emergencies and keep the public informed during severe weather events; to talk about redevelopment projects happening in the Borough; and to discuss personnel issues, such as the suspension of a police officer. We also showed that residents frequently posted on the Page about issues they were having with government services and Mayor Reiman or “staff” would respond to those inquiries and try to resolve the issues. Our brief is available here.

On January 11, 2019, the Honorable Alberto Rivas, A.J.S.C., heard oral arguments and found that Mayor Reiman’s Facebook page is subject to OPRA because it is used to conduct the Mayor’s official business. He adopted the fact-sensitive analysis used by Judge Mizdol in Larkin v. Glen Rock, a similar case we won last year.

Judge Rivas ordered Carteret to produce the ban list and to pay Mr. Wronko’s legal fees. A copy of the Order is here.

 

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…