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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.

Third Circuit Issues Important OPRA Decision on Legal Fees

According to N.J.S.A. 47:1A-6, a records requestor who prevails in any proceeding shall be entitled to an award of reasonable attorneys’ fees. We have written about OPRA’s fee-shifting provision before, noting that without the fee-shift most requestors would not have the funds to challenge denials of access. As a result, the state would be far less transparent.

On August 14, 2019, the United States Court of Appeals for the Third Circuit issued an important published opinion relating to OPRA’s mandatory fee-shifting provision.

The case, titled Golden v. New Jersey Institute for Technology, involved OPRA requests filed by Pulitzer Prize-winning journalist Daniel Golden, who was seeking records from NJIT to use as research for his book, “Spy Schools: How the CIA, FBI, and Foreign Intelligence Secretly Exploit America’s Universities.” Many of the responsive records in NJIT’s files originated from the FBI and were purportedly subject to prohibitions on public dissemination.

The records custodian reached out to the FBI to determine how to respond to the request and the FBI directed NJIT to withhold most of the records “[i]n no uncertain terms.” NJIT thus denied the OPRA requests by claiming the records were exempt.  Golden sued.

After the lawsuit was filed and removed to federal court, the FBI reviewed the previously withheld records and NJIT produced thousands of pages of documents that it had formerly deemed to be exempt. Golden moved for attorney’s fees, arguing that he was a prevailing party because his lawsuit was the “catalyst” for NJIT’s release of records that were not exempt. The District Court denied the fee motion and was “persuaded by NJIT’s position that it had acted reasonably in following the FBI’s direction.”

The Third Circuit disagreed and all but stated, “If a public agency permits a third party–even if it’s the FBI–to dictate its OPRA response, then that public agency will be on the hook for attorneys’ fees if it turns out that the denial of access was unlawful.” The court made it clear that it is the custodian who has the obligation “to parse the requested records, decide whether exemptions appl[y], and withhold documents pursuant to those exemptions” and that obligation cannot be outsourced to a third party outside the agency.

Importantly, the Third Circuit flatly rejected the argument that OPRA’s fee-shifting provision contains any “reasonableness” requirement. State courts have reached the same conclusion based on the plain language of OPRA, but public agencies still make this argument to trial courts.

This decision is important because there are often times where issues of first impression are litigated and the agency was operating under good faith when it denied a request, but nonetheless was wrong as a matter of law. In such situations, the OPRA requestor is still entitled to an award of attorneys’ fees. Indeed, OPRA contains a mandatory fee-shifting provision so that requestors can find competent counsel to litigate those types of cases.

Pashman Stein Walder Hayden Notes Impact of Dash Cam Case on 2nd Anniversary of Landmark New Jersey Supreme Court Decision in North Jersey Media Group v. Township of Lyndhurst

When Pashman Stein Walder Hayden partners CJ Griffin and Samuel J. Samaro received the unanimous decision in North Jersey Media Group Inc. v. Twp. of Lyndhurst, 229 N.J. 541 (2017), from the New Jersey Supreme Court on July 11, 2017, it was clear that this hard-fought matter was a landmark case that would have significant impact on transparency about the use of force by police in the state of New Jersey. The Court had granted access via the Open Public Records Act (OPRA) and common law to police records and dash cam footage of a high-speed police chase and the fatal use of force on a black, male suspect, documents that the State had for more than two years refused to release.

It has been two years since the case set a precedent about the usage of OPRA in obtaining law enforcement records, dash cam footage, and Use of Force Reports. The case received national attention, as reporters applauded the affirmation of government transparency as a fundamental principal that trumps a police agency’s interest in keeping videos and reports secret. “In New Jersey, police officers are required to complete Use of Force Reports any time they use any amount of force against a suspect, whether it is twisting someone’s arm, using leg or wrist strikes, or using deadly force, which is any time a weapon is fired,” said Griffin. “The State sought to shield Use of Force Reports from the public permanently and keep the public from learning the identities of officers who use deadly force against citizens. Thankfully the Supreme Court made that information public.”

Griffin adds, “We continue to litigate for information on police shootings and conduct across the state. For example, an appeal is pending on whether a Use of Force Report relating to force used against a juvenile suspect is accessible via OPRA because it directly pertains to the conduct of the police officer, or, as the law enforcement agency counters, is exempt as juvenile records for delinquency crimes. We also continue to file numerous cases for access to body camera footage and other information about police-involved shootings.”

“At this two-year milestone,” Samaro states, “the Lyndhurst decision continues to be impactful. The unprecedented access to police reports has revealed misconduct details and use of force statistics that had never been viewed or analyzed before. We used solid legal arguments to obtain access to this information, and in doing so, opened a movement for greater transparency in our law enforcement agencies.”

As a direct result of the Lyndhurst decision, a public database was created of more than 70,000 Use of Force Reports, searchable by town and by specific officer. It has been reported that the State Attorney General Gurbir Grewal is taking steps to improve police oversight, and that he is acting in part on the information provided in the Use of Force report that derived from the Lyndhurst decision.

Michael S. Stein, chair and managing partner of Pashman Stein, said, “The Lyndhurst case took a stand not only for the journalists who sought the truth about the fatal shooting of Kashad Ashford, but also for the nearly 30 amici curiae that participated in the litigation on behalf of diverse communities who want to ensure that the press and public have meaningful access to law enforcement records. At Pashman Stein, we are committed to taking on these high impact public interest cases, and to use advocacy to advance civil rights and government transparency.”

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.

 

Editorial: Lottery Winners Shouldn’t Be Anonymous

A new bill pending in the Senate, S-2267, directs the State Lottery Commission to amend its regulations so that the identities of lottery winners are not accessible under the Open Public Records Act (OPRA). The bill offers the winners of the lottery lifetime anonymity.

In 2013, former Governor Christie vetoed a similar bill that would have allowed lottery winners to remain anonymous for one year because he claimed it “could undermine the transparency that provides taxpayers confidence in the integrity of the Lottery and its games.” Similar bills have recently failed in other states, with Governor Cuomo recently vetoing such a bill in New York.

S-2267 raises major concerns. While his track record on transparency is notoriously pretty bad, on this issue Governor Christie was right.

Without disclosure of the name of the winner(s), what combats corruption?

What will prevent lottery insiders from rigging the game? (It has happened!)

What will prevent the person who purchased tickets for the office pool from collecting the cash anonymously and quietly resigning without telling co-workers that the office pool tickets won? (Similar things have happened!)

What will give lottery ticket purchasers confidence that the money was really distributed to a legitimate winner and that the Commission didn’t just make up a fake winner and pocket all the profits?

It’s true that “lottery fame” can be a hassle and that many winners describe winning as both the best and worst thing to happen to them. But, transparency is important. It guards against corruption and reassures lottery ticket purchasers that the money was properly awarded to a legitimate winner in a fair game.

Those who do not want the fame that comes from winning millions and millions of dollars should opt out of playing the game. Otherwise, when you buy a lottery ticket, you do so with the understanding that the public has a right to know who the lucky winner is.

CJ Griffin

It’s Sunshine Week!

This week is Sunshine Week, a week dedicated to promoting openness in government! In honor of Sunshine Week, we’re sharing the following resources which will help you shine a light on the government.

OPRA Presentation:

CJ Griffin will give an OPRA training in Nutley (Essex County) on March 12. Come meet CJ and learn about how you can use the Open Public Records Act to hold your government accountable.

New Jersey Resources:

New Jersey Transparency Center/YourMoney.NJ.Gov: This website is operated by the State of New Jersey and provides volume of data about State agencies and authorities. Want to know how much a certain state employee earns? You can look it up here, along it budgets, purchasing records, pension records, and more.

OPRAMachine.com: You can use this website to file directly to State, County, and local government agencies. The request will be posted on OPRA Machine, as well the agency’s response to your request. It is a great resource for tracking your requests and to help others see the data without having to file their own requests. If you want to file records requests in other states or with the federal government, you might want to check out a similar resource, MuckRock.

NJ Open Government Blog: This blog is operated by John Paff, a well-known transparency and open government advocate in New Jersey. Mr. Paff frequently blogs about recent OPRA lawsuits and judicial opinions. You might also find his other blog, NJ Civil Settlements, helpful. There, he posts about settlement agreements that government agencies have entered into, often resulting in a significant expenditure of tax dollars.

The Force Report: Want to know how many times the police officers in your town used physical force against another person and whether there were any racial disparities in the use of force? This database by NJ.com provides several years of data and is easy to navigate.

Protecting the Shield: Reporters from the Asbury Park Press spent two years working on this brilliant investigative series “to expose the deadly price the public pays when known bad cops remain on the streets.”

New Jersey Death Index: We helped Reclaim the Records gain access to New Jersey’s death index and they created this amazing free searchable database!

Imposing Personal Penalties Upon Those Who Knowingly Violate OPRA

Today, The Record published a story about the Borough of Wallington’s decision to suspend its Borough Clerk and file tenure charges against him with the state Department of Community Affairs. According to The Record, the Clerk is charged with “serious deficiencies,” including failing to comply with OPRA’s statutory time frames “43 times in 2018 and 36 times in 2017.”

PSWH Partner CJ Griffin is quoted in the article and discusses the potential liability both a public agency and its records custodian (or other employees) could face for violating OPRA.

Most OPRA cases involve an “ordinary” denial of access that occurred for one reason or the other. It may be that the records custodian or person responding to the OPRA request applied the law incorrectly or that the law was unclear as to whether a record is exempt or not. A records requestor has a right to challenge such a denial and if the court agrees that the response was unlawful, the remedy is that the court will order the record to be released and require the public agency to pay the requestor’s reasonable attorneys’ fees. No public employee personally pays these attorneys’ fees, even if they were the ones who came to the wrong conclusion to withhold a government record from public access.

Beyond the “ordinary” OPRA case, a requestor can seek personal penalties against the records custodian or person responding to the OPRA request. Pursuant to N.J.S.A. 47:1A-11(a):

“[a] public official, officer, employee or custodian who knowingly and willfully violates [OPRA] . . . and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty of $1,000 for an initial violation, $2,500 for a second violation that occurs within 10 years of an initial violation, and $5,000 for a third violation that occurs within 10 years of an initial violation.”

The fine is imposed upon the public official, officer, employee or custodian personally and the agency does not pay this fine.

What constitutes a knowing and willful violation of OPRA? There is not a lot of case law on this, but it is clear that in order for the denial to be considered willful the person responding to the request must have actual knowledge that their actions are unlawful.

Sunshine Week OPRA Seminar in Nutley

On Tuesday, March 12, 2019 at 7 p.m., PSWH Partner CJ Griffin will celebrate Sunshine Week by giving a free OPRA presentation at the Nutley Public Library. Come learn the nuts and bolts of filing an OPRA request so that you can make sure your town is transparent!

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.

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.