Category Archives: Uncategorized

Griffin quoted in editorial about body cam lawsuit

The Trentonian published an editorial on January 15, 2019, calling for Trenton Mayor Reed Gusciora’s administration to be more transparent. The editorial discusses a lawsuit filed on the newspaper’s behalf by CJ Griffin, a Partner at Pashman Stein Walder Hayden and Editor of the NJ OPRA Blog. Griffin, who is quoted in the editorial, sued for the newspaper to obtain access to a body camera recording which would confirm whether the Mayor’s Chief of Staff had falsely accused one of the Trentonian‘s reporters of stealing documents from his office. To read the editorial, learn about the litigation, and view the body camera recording, click here.

Unlike dash camera recordings, body camera recordings are “required by law to be made, maintained, or kept on file” pursuant to Attorney General Directive 2015-1 and thus they cannot be exempt under OPRA’s criminal investigatory records exemption.

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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.

 

Vendor Activity Reports: A Helpful Tool for Tracking Spending

Many people want to know how they can monitor an agency’s spending and determine how much an agency is paying a certain vendor (such as a law firm, plumber, construction company, or insurance company) or even who the agency’s vendors are. A “Vendor Activity Report” (or “Vendor History Report”) is a very helpful tool for learning this information.

A Vendor Activity/History Report details all payments made to every individual or company that was entered into the agency’s accounting software in order to receive a payment. If a bill is paid, then there is a corresponding “vendor” entry in the accounting software.  The Vendor Activity/History Report will list all of the vendors and the total amount of money they were paid during the requested time frame. Once you obtain the report and see something that interests you, then you can you can request the corresponding payment vouchers and bills/invoices for that vendor to further investigate the spending. Requestors have used the Vendor Activity/History Report to identify large reimbursements to the agency’s employees, for example.

Here are a couple examples of Vendor Activity Reports from NJ towns that we found on the Internet, so you can see what they look like and how helpful they can be:

Egg Harbor Township’s Vendor Activity Report, located here, lists all vendors for the designated time frame (2015). This type of report is helpful because you can see the total payments made to every single vendor contained in the agency’s accounting software during a specified time period. If you do not know anything about an agency’s finances or which vendors they use, you can ask for the full vendor activity report and learn who the vendors are and how much they were paid. To request this type of report, one would simply say: “Pursuant to OPRA and the common law right of access, I seek the vendor activity or vendor history report for all vendors by vendor name for payments made January 1, 2018 to present date.”

Eagleswood Township’s Vendor Activity Reports, located here on this OPRA Machine request,  provide a breakdown of all payments to an identified vendor during the specified time frame. This type of report is helpful when you know about a vendor already and just want to see how much they were paid during a specific time period. In these reports, the requestor sought the activity report for three specific vendors (newspapers). The reports show all of the payments made to those vendors. To request this type of report, one would simply say: “Pursuant to OPRA and the common law right of access, I seek the vendor activity or vendor history report for all payments made to [Insert Name of Vendor/Company] for January 1, 2018 to present date.”

If you have any questions about this topic, please feel free to contact CJ Griffin at cgriffin@pashmanstein.com

You Only Have 45 Days to Sue for an OPRA Violation

Perhaps the most important thing to remember about OPRA is that there is a very, very short statute of limitations period. This means that if you receive a denial, you need to act very quickly or you may lose your rights to gain access to the record you seek.

What do you do if you receive a denial from an agency or if the agency unlawfully redacts information from government records?

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

  • You will sign a retainer agreement with an attorney, which likely agrees to represent you on a fee-shifting basis (meaning, there will be no charge to you–the agency will pay the fees if and when you prevail)
  • A Verified Complaint and Order to Show Cause is filed. These will be drafted by the requestor’s attorney, though the requestor must sign the complaint to verify it is accurate.
  • The judge will review and sign the order, which sets for a briefing schedule and a hearing date.
  • The pleadings are then served upon the public agency and they will submit an opposition brief. Sometimes, an agency may opt to release the records and settle the attorney fee amount rather than proceed with the litigation.
  • The requestor’s attorney has an opportunity to file a reply brief
  • 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. The requestor need not be present for the hearing.
  • If the requestor is declared a prevailing party, the Court will order the agency to pay the requestor’s attorney 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.

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

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.

 

 

OPRA Modernization Bill – copying fee problems

Every year, transparency warrior Senator Loretta Weinberg introduces a bill which would modernize and improve OPRA. This year’s bill is S107. Given that Democrats now control the Senate, Assembly, and Governor’s Office, we are hopeful that the bill has a chance of passing.

While the bill overwhelmingly improves OPRA, through a series of blogs we will highlight how some small provisions of the bill that seem non-controversial can actually cause some major problems for requestors.

First topic? Copying costs.

Currently, agencies cannot charge a copying charge to send requestors PDFs of documents. One creative way that agencies try to stall access to records is to think of a way to charge for them. Sadly, S107 will make such conduct perfectly legal.

S107 amends N.J.S.A. 47:1A-5(b) so that “a public agency may charge the fee for each copy made in the process of responding to a government record request made during the redaction process.”  What this means is that if an agency has to print a copy of a record to redact it, it can charge for that copy even if it ends up scanning the record to the requestor in a PDF.

Hypothetical:

John Doe files an OPRA request for a copy of an employee’s one-page pay stub. The Custodian is obligated to redact the employee’s social security number from that document, so she prints a copy of it and redacts it. S107 allows her to charge 5 cents for that record. She emails John Doe and tells him that he has to pay 5 cents before she will email the pay stub to him and that he can either mail in a check or come pay by check at the clerk’s office.

John Doe now has to find his checkbook, write a check for a measly 5 cents, pay 49 cents for a sttamp, and wait 1-3 business days for it to arrive and the Custodian to email the pay stub to him. Or, he can take time off work to go drop off a check during the Custodian’s business hours. That’s an awfully big hurdle to receive a pay stub! It’s not the cost is too much, but the hassle of having to arrange to pay the fee discourages and delays access. But, S107 permits it.

This is not a crazy hypothetical, by the way. Things like this actually happen all the time. The GRC has addressed this issue several times, such as in Galloway Township News and Paff.

Hopefully this provision will be removed as the S107 works its way through committees.

Supreme Court Rules Dash Cams Pertaining to Criminal Investigations Are Not Subject to OPRA

This week, the New Jersey Supreme Court issued a split decision (4-3) in Paff v. Ocean County Prosecutor’s Office and once again ruled that dash camera videos that pertain to criminal investigations are not subject to the Open Public Records Act (OPRA).

While the decision is a serious disappointment to transparency advocates, it does not actually change the status quo. Last year, in North Jersey Media Group Inc. v. Township of Lyndhurst, a unanimous Supreme Court ruled that the dash cam video of a police-involved deadly shooting was not subject to OPRA because there was no Attorney General (AG) guideline or other law (statute, regulation, etc.) that required it to be made or maintained.[1]

The Court made it clear in Lyndhurst, however, that dash camera videos of police shootings should generally be released under the common law right of access within a few days of an incident. The AG subsequently issued a directive requiring their release within 20 days.

In Lyndhurst, the Court specifically said that it was not answering the question presented by Paff (which was pending on the Court’s docket): whether a directive by a local chief of police could satisfy the “required by law” standard, just as an AG directive does. Thus, the Paff case became a new opportunity for transparency advocates to convince the Court that dash camera videos are accessible under OPRA.

Unfortunately, the Court rejected that argument and thus the law remains the same: dash camera videos are only available under the common law right of access. But, it was a very close decision (4-3). Justice Albin wrote a biting dissent, which Justice LaVecchia and Justice Timpone joined, concluding that “[i]n the wake of today’s majority opinion, the operations of our government will be less transparent and our citizenry less informed, which may lead to greater misunderstanding and more distrust between the public and the police.”

We think Justice Albin’s assessment is right and we hope that the Legislature or the Attorney General will accept his invitation for action:

In accordance with Lyndhurst, the Attorney General or the Legislature can undo the damage caused by today’s decision. The Attorney General can adopt a statewide policy that addresses whether and how police video recordings are made and maintained, as he did with Use of Force Reports.

The public — particularly marginalized communities — will have greater trust in the police when law enforcement activities are transparent.

The public pays for the dash cameras. Why can’t we see the videos?

What Videos are Still Available?

  • Dash Cam Videos Relating to Crimes: These are probably not available under OPRA in most circumstances, but generally should be available under the common law per Lyndhurst.
  • Dash Cam Videos of Police Using Deadly Force: Same. Also, AG Directive 2018-1 requires disclosure under the common law within 20 days if the video depicts a deadly shooting or an incident where police use force that results in “serious bodily injury.”
  • Dash Cam Videos of a DWI: A DWI is not a crime, so these should generally be available under OPRA.
  • Dash Cam Videos of Traffic Stops: These should generally be available, unless the traffic stop turns criminal.
  • Body Camera Videos: We think these should be subject to OPRA because an AG Guideline requires them to be maintained. At the same time, the AG Guideline attempts to exempt body cam videos relating to criminal investigations. We have this issue pending on appeal.
  • Security Camera Videos: The Supreme Court ruled in 2016 that security camera videos are not subject to OPRA, but access should be granted under the common law where a person states a sufficient interest in the video.

PSWH partner CJ Griffin submitted a brief on behalf of several amicus curiae and participated in the nearly three-hour oral argument. Griffin has litigated dozens of police records cases, including Lyndhurst.  Contact CJ at cgriffin@pashmanstein.com


[1] A criminal investigatory record is a record that is 1) held by a law enforcement agency; 2) pertain to any criminal investigation and 3) are “not required by law to be made, maintained, or kept on file.”

OPRA Seminar on 9/6 in Voorhees

PSWH Partner CJ Griffin will present a seminar in Camden County titled “OPRA 101: How to Use the Open Public Records Act to Hold Your Government Accountable.”  The event is being hosted by LoveLindenwold.org

Date and Location:

Thursday, September 6, 2018
6pm
M. Allan Vogelson Regional Branch, Camden County Library System,
203 Laurel Rd
Voorhees Township, NJ 08043

Event Description:

The New Jersey Open Public Records Act (“OPRA”) is a powerful tool for people who want to ensure that their government is transparent and accountable. This seminar will provide you with the nuts and bolts to use OPRA effectively.

Topics to be discussed include:

  • How to draft a valid OPRA request
  • Explanation of common exemptions
  • Tips for getting the records you want
  • What to do when your request is denied

RSVP:
Seating is limited. Please RSVP by calling 1.888.498.6788 or by sending an email to: love at lovelindenwold.org.

To view the event flyer, click here.

If your community organization or newsroom would like to host a seminar, please contact cgriffin@pashmanstein.com.

PSWH Helps Reclaim The Records Get New Jersey’s Death Index

Our client, Reclaim the Records, just published a newsletter explaining how PSWH partner CJ Griffin helped the organization gain access to New Jersey’s Death Index.

Reclaim The Records is a not-for-profit activist group of genealogists, historians, researchers, and journalists. It works to identify important genealogical record sets that are not online anywhere and not broadly available to the public. Through public records laws, it works to obtain copies of the records and then digitizes them and puts them online for free use.

What did Reclaim the Records do with the Death Index? It created a new website, https://www.newjerseydeathindex.com, which it describes as “Your one-stop shop for everything you ever wanted to know about the New Jersey Death Index, with a searchable database of over 1.2 million records for 2001-2017 and direct links to over 500,000 digital images for the not-yet-transcribed 1901-2000 data.”

Screenshot of the New Jersey Death Index website

We are always excited to see the creative ways that our clients use the data and records that we help them obtain. Reclaim The Records has provided this great free service to the public, which will no doubt help those who are performing genealogical research about their own families.

 

 

Update: Court Orders Disclosure of Facebook “Blocked Users” Lists

We previously wrote about an OPRA lawsuit we filed on behalf of citizen seeking a list of users that various public officials from Glen Rock have blocked from their official Facebook accounts. Today we are happy to report that the suit was successful.

In Larkin v. Glen Rock, the Honorable Bonnie J. Mizdol, A.J.S.C., ruled that the lists of blocked users from each of the Facebook pages in questions were “government records” that are subject to access under OPRA. In her 23-page opinion, the judge noted that there is no “one-size-fit-all” approach to determine whether a particular Facebook account falls within OPRA’s scope. Rather, she applied a “fact-sensitive review” of the Facebook pages at issue to conclude that they were indeed subject to OPRA.  Among other things, the judge noted that:

  • The mayor and each council member’s Facebook pages “clearly identified them as elected members of the Glen Rock governing body”
  • Each page was “separate and distinct from their personal, friends and family Facebook pages”
  • Each page was used for “discussing matters directly pending before the Mayor and Council,” including topics such as “ordinances, resolutions, budgets, and committees on which the Mayor or council member serves.”
  • The posts on each page “shared ideas, answered questions and interacted with constituents and the public at large about the Borough’s official business”
  • The Borough’s website had linked to the Facebook pages
  • The officials encouraged the public to “like” the pages in order to get information about the Borough’s business

The court also rejected Glen Rock’s argument that those who were blocked by the public officials had a right to privacy.