Category Archives: Sunshine Week

Sunshine Week Begins With Supreme Court OPRA Case

It’s Sunshine Week and this year it kicks off in New Jersey with oral arguments before our Supreme Court in an important Open Public Records Act (OPRA) case.

On March 15, 2021, the Supreme Court will hear Bozzi v. City of Jersey City, a case that asks whether a list of names and addresses of dog license holders are accessible under OPRA. The plaintiff seeks the list for commercial purposes–he intends to mail dog owners information about his invisible fences.  The case is listed as the second case of the day, which means arguments will begin sometime after 11:00 a.m. You can watch it here.

CJ Griffin of Pashman Stein Walder Hayden will be participating in the case and will be arguing last. Griffin filed an amicus curiae brief on behalf of Libertarians for Transparent Government, arguing that the Legislature has rejected numerous bills that attempted to exempt dog owner lists or that sought to limit the ability of commercial requestors to utilize OPRA. The amicus brief also explains that limiting this commercial requestor’s right of access will cause harm to all the other requestors who might seek lists of dog owners to benefit the public in some way.

Unfortunately, public agencies sometimes use OPRA’s privacy provision not as a shield to protect legitimate privacy rights, but rather as a sword to attack a requestor’s reason for seeking records, something that should be irrelevant.  In this case, a commercial requestor’s right to obtain public records is under attack, but in other instances the ones under attack are the so-called “gadflies” or the persistent reporters who are thorns in the sides of politicians.  If the Court decides in the City’s favor in this case, the consequences will not be limited only to the addresses of dog license owners or to commercial requestors.  Public agencies will undoubtedly think of far-fetched reasons to invoke OPRA’s privacy provision so that the balancing test applies.  Requestors will then have to sue and convince courts that that their reasons for wanting the records serve a “legitimate public purpose.”  In other words, an interest requirement will be engrafted into OPRA where one does not exist, and as a result, all requestors, whether commercial or not, will have to fight harder to access information that should be statutorily available to them as of right.

. . .

Even if this Court considered a commercial interest to be insufficient to gain access to the dog license records in this case, there are clearly other reasons for requesting these records that do advance “legitimate public purposes.”  For example, someone who encounters a neighbor’s aggressive dog might want to determine if the dog is licensed and vaccinated.  . . .  Someone who runs a local animal rights group might want to contact other dog owners to rally them to pass better animal welfare laws, to lobby for a local dog park, or to alert them to local dangers to dogs.  An animal rescue organization might want to independently verify that the dogs it has adopted out have been properly licensed and vaccinated, or it might want to screen prospective adopters to determine if they have other pets (or had other pets that they surrendered) that they are not disclosing on their adoption applications.  A watchdog group like LFTG might want to investigate whether public officials are failing to license their own pets all while hypocritically ticketing members of the public for failing to do so.  Or, it might want to verify that the list of licenses is accurate and that all of the money collected from licenses are distributed in the proper accounts and transmitted in full to the proper state agencies. . . . A research organization might seek the names and addresses of dog license owners so that it can map them and determine whether certain neighborhoods have more licensed dogs than others and whether there is any correlation to economic factors, such as income, in the ownership or licensure of dogs.

NJ Advance Media previously wrote about the case when it was pending in the trial court. Both the trial court and the Appellate Division ruled that the list must be disclosed.

New Jersey Legislature Permits Electronic Public Meetings During COVID-19 Emergency

Update: Governor Murphy signed this bill into law on March 20, 2020. Many public agencies are already conducting electronic meetings.

The New Jersey Legislature is currently considering numerous bills in response to the current COVID-19 pandemic. One bill is A3850, which passed in the Assembly on March 16, 2020, and will likely also pass in the Senate very soon. A3850 amends a public body’s obligations under the Open Public Meetings Act (OPMA) during a state of emergency. Because this is Sunshine Week and transparency is very important during a crisis, we decided to devote a blog to this pending bill.

Public Bodies May Conduct Electronic Meetings

The amended law would provide that during a state of emergency, public health emergency, or state of local disaster emergency, a public body may perform any of the following by “means of communication or other electronic equipment:”

  1.            conduct a meeting and public business at that meeting,
  2.            cause a meeting to be open to the public,
  3.            vote, or
  4.            receive public comment.

Conducting any of those activities electronically during a statement of emergency will not be considered a violation of OPMA.

The bill does not provide a definition for “means of communication or other electronic equipment.”  Most public agencies will likely utilize video conferencing programs that permit the public to view a public meeting and participate in the public comment section in real time during the meeting. Those agencies will likely also accept public comments by email or phone for those who do not have such technology.

Public Bodies May Give Electronic Notice of Meetings

The bill also allows for electronic notice of public meetings at least 48 hours in advance of a meeting, giving the time, date, location and, to the extent known, the agenda of any regular, special or rescheduled meeting. The notice must also accurately state whether any formal action may or may not be taken at such a meeting. Importantly, to the extent practicable, a public body providing only electronic notice of a meeting pursuant to the new law shall limit public business discussed or effectuated at the meeting to matters necessary for the continuing operation of government and which relate to the applicable emergency declaration.

We will provide an update when this bill is signed into law.

 

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!

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