Category Archives: Uncategorized

PSWH Files NJ Supreme Court Amicus Briefs Dealing with Transparency

Recently, Pashman Stein Walder Hayden has filed several amicus curiae briefs in pending Supreme Court appeals dealing with transparency issues:

Paff v. Ocean County Prosecutor’s Office:  This case will provide further guidance on whether dash cam videos are available under OPRA. While the Court recently ruled that dash cam recordings of a police-involved shooting were not subject to OPRA in North Jersey Media Group Inc. v. Twp. of Lyndhurst, this appeal considers arguments that were not made in that case.  We filed an amicus brief in support of transparency on behalf of Latino Leadership Alliance, Garden State Equality, People’s Organization for Progress, and the NJ Chapter of the Society of Professional Journalists. This will be one of the most important cases on the Court’s docket this year, as dash camera footage is vital to transparency and police accountability.

Brennan v. Bergen County Prosecutor’s Office:  The Court will determine whether the names and addresses of individuals bidding on government property at an auction are subject to access under OPRA or whether OPRA’s privacy provision would shield such information.  The issue of whether addresses are protected by OPRA’s privacy provision has popped up repeatedly. In earlier cases, the courts found a minimal privacy interest and granted access to records containing addresses, but lately, the courts have trended the other way.  We filed an amicus brief in support of the requestor on behalf of Libertarians for Transparent Government.

Kean Federation of Teachers v. Ada Morell:   The Court will consider whether a public agency complied with the Open Public Meetings Act (OPMA) obligation to make meeting minutes “promptly available” to the public (N.J.S.A. 10:4-14) when it took ninety-four days and fifty-eight days, respectively, to release the minutes of two meetings.  We filed an amicus brief in support of the requestor on behalf of Libertarians for Transparent Government arguing that there is no requirement in OPMA that minutes be “approved” prior to releasing them to the public and that permitting agencies to use an optional “approval” process to delay access to meeting minutes undermines OPMA’s “promptly available” requirement.

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Victory Achieved in Supreme Court Police Records Case

We have previously written about our nearly three-year battle to secure access to police records relating to the police-involved shooting of Kashad Ashford in 2014.  We are happy to announce that the Supreme Court of New Jersey has issued a landmark ruling in this case and has restored transparency over the use of force by police officers.  Our press release is available here.

In a decision written by Chief Justice Stuart Rabner, the Court unanimously ruled that use of force reports, the names of officers involved in the shooting, and dash camera footage of the incident should be released.  The decision is legally significant and promotes transparency in several ways.

First, the Supreme Court agreed that the Attorney General’s policies are “laws” that defeat the criminal investigatory records exemption.  Thus, in any instance where a record is required to be “made, maintained, or kept on file” by an Attorney General guideline, policy, or directive, an agency may not claim the criminal investigatory records exemption.  A partial list of Attorney General guidelines, policies and directives are available here.  Some of the records that are required to be made and thus are not automatically exempt include vehicle pursuit reports, bias incident offense reports, and body-worn camera footage.

Second, the Supreme Court addressed the ongoing investigation exemption (N.J.S.A. 47:1A-3a) for the first time.  This exemption permits nondisclosure of records pertaining to an ongoing investigation where release would be “inimical to the public interest.”  The Court said this means that the public’s interest in disclosure must actually be weighed against the state’s interest in nondisclosure.  The Court made it clear that while officer safety and integrity of an investigation are important concerns, the public’s interest in transparency when police use deadly force weighs in favor of access.  In order to overcome this important right to transparency, an agency cannot present “generic reasons” for non-disclosure—it must make a “particularized showing” of potential harm.

Third, the Court rejected the State’s argument that the names of officers who use force against citizens are confidential.  This is a very important component of this case, as the State argued that the public is not entitled to know the names of officers who shoot suspects unless those officers are criminally charged.  Eventually, in other cases, the State took the position that the public is never entitled to know which officers use even minor levels of force, such as wrist strikes.  The Supreme Court’s decision restores transparency over the use of force by police, which will permit civil rights advocates to collect use of force reports and analyze trends in the use of force.

Finally, the Court granted access to dash cam footage.  Although in this case the Court said access was granted under the common law only because neither party pointed to a “law” that required dash cam footage to be made, maintained, or kept on file, the Court left open the question as to whether a local directive of the chief of police constitutes a “law” that would satisfy that standard and defeat the criminal investigatory records exemption.  That question will be answered later this year or in early 2018 when the Court hears Paff v. Ocean County Prosecutor’s Office.   Importantly, as noted above, body-worn camera footage is required to be maintained pursuant to Attorney General Directive No. 2015-1, so such videos are not automatically exempt as criminal investigatory records.

This landmark ruling has garnered national attention from the news media, including an editorial by the New York Times.

Supreme Court Restores Access to Electronically Stored Information

Last year, in Paff v. Township of Galloway, 444 N.J. Super. 495 (App. Div. 2016), the Appellate Division issued a rather shocking decision —in essence, the court held that even though OPRA includes electronically stored information is in the definition of “government records,” an agency has no obligation to extract that data because it would be “creating a new record.”

Mr. Paff’s request involved a log of emails that included the “to,” “from,” “subject,” and “date.” The agency admitted that it could print the log and it would take only two to three minutes to do so, but it argued that printing out that data in the format of a log would be creating a new record.   Since Paff v. Township of Galloway was issued, we have seen public agencies try to argue that they do not have to print payroll reports, accounts receivables reports, and other common reports from their databases because doing so would be “creating a new record.”

Thankfully, in a unanimous decision, the Supreme Court of New Jersey restored OPRA access to electronically stored information. The Court held that “A document is nothing more than a compilation of information—discrete facts and data. By OPRA’s language, information in electronic form, even if part of a larger document, is itself a government record. Thus, electronically stored information extracted from an email is not the creation of a new record or new information; it is a government record.” The Court noted that OPRA contemplates the “programming of information technology,” and that this is precisely what is required to extract the electronic information that Mr. Paff sought.

The Supreme Court also found that the Appellate Division erred in giving the Government Record Council’s (GRC) guidance to the Township of Galloway “substantial deference.” In fact, the Court reminded lower courts that the GRC’s decisions and guidance are not entitled to any deference, let alone substantial deference. This is important because too often agencies try to convince lower courts that they must follow what the GRC says, even though the OPRA statute states otherwise.

In today’s world, there are fewer and fewer records that exist only in paper form and much information is now stored electronically in databases and accounting programs. The Supreme Court’s decision ensures that the public is entitled to access such electronically stored information, just as OPRA says.

Email Searches Must Include Search of Township Server and Personal Email Boxes

Pashman Stein Walder Hayden recently secured a victory in Matt Mills v. Township of Monroe, a case that challenged the sufficiency of a public agency’s search for emails responsive to an OPRA request.

In this case, Mr. Mills requested emails sent to or from various township employees and officials relating to the township’s EMS services. After the township responded to the request and produced emails, Mr. Mills noticed that not everything was produced. After he followed up, the township produced more emails, but Mr. Mills was still aware of other emails that were not produced. This included emails from one township councilman’s private email account. After Mr. Mills once again followed up, he still felt certain that not all emails were produced. Ultimately, he filed a request to the County and found that there were even more emails from one councilman in particular, but that were not produced by the township. At that point, Mr. Mills filed suit against the township.

This case presented a frequent problem that occurs: all too frequently, Records Custodians permit employees to search their own email boxes when a request for e-mails comes in. This creates several potential problems. First, an individual employee may not even know how to correctly search their email boxes for responsive emails. Second, a search of an individual’s email box on their local desktop will not recover emails that they may have deleted as a matter of course. Third, if the individual employee has emails that are incriminating or embarrassing, they may opt not to produce them.   The problem is exacerbated when a public employee uses their personal emails to conduct government business, as the Custodian has no control over those email accounts and items deleted from the personal account (such as yahoo or gmail) may not be recoverable from a server.

The Honorable Georgia M. Curio, A.J.S.C., found the township violated OPRA by failing to properly search for responsive emails. She found that a proper search must include a search of the township’s email server, so as to ensure that even emails that were deleted from local inboxes would be recovered. She ordered the township to conduct a new search of the township server, to produce all of the emails that are found, and to submit a sworn certification that describes the search and the township’s records retention policy. Because it was clear that at least some of the officials used private accounts to conduct government business, the judge ordered each individual named in the OPRA requests to perform searches of their private email accounts and to submit sworn certifications about their searches.

NJ Advance Media has covered Mr. Mills’ victory.  Additionally, the South Jersey Times wrote an editorial encouraging public agencies to stay away from private email use.

 

Borough Invokes Automatic Fee for OPRA Requests

The Borough of Flemington has made the news recently when it voted to impose an automatic special service charge on all OPRA requests that the Custodian estimates will take over two hours to fulfill.  When the Custodian receives such a request, she will provide an estimate to the requestor who will then have to pay one-third of the costs in advance.

We previously discussed the imposition of special service charges on this blog.  While OPRA does permit a special service charge where a request requires an “extraordinary expenditure of time and effort to accommodate,” as previously discussed, neither the courts nor the GRC have considered a mere two hours of time to be an “extraordinary expenditure of time.”

The Borough will likely find significant opposition, and perhaps a legal challenge, to this new policy.

Agencies May Charge Special Service Charges, But Only In Rare Cases

One question we frequently receive is whether an agency can charge a requestor an hourly rate to respond to an OPRA request.   The answer is yes, but only in specific circumstances where a requestor seeks an extraordinarily large volume of records.

N.J.S.A. 47:1A-5(c) provides that:

Whenever the nature, format, manner of collation, or volume of a government record embodied in the form of printed matter to be inspected, examined, or copied pursuant to this section is such that the record cannot be reproduced by ordinary document copying equipment in ordinary business size or involves an extraordinary expenditure of time and effort to accommodate the request, the public agency may charge, in addition to the actual cost of duplicating the record, a special service charge that shall be reasonable and shall be based upon the actual direct cost of providing the copy or copies

Our courts and the Government Records Council consider several factors in determining what constitutes an “extraordinary expenditure of time and effort.”  Specifically, they look at:

  • The volume of government records involved
  • The period of time over which the records were received by the governmental unit
  • Whether some or all of the records sought are archived
  • The amount of time required for a government employee to locate, retrieve and assemble the documents for inspection or copying, and then return them to their original storage location
  • Whether redaction is required
  • The size of the agency and number of employees available to accommodate document requests
  • The availability of information technology and copying capabilities

In other words, what may be “extraordinary” to one very small agency might be routine to larger agencies.

There are only three published judicial opinions on the issue of special service charges.  The Supreme Court permitted a special service charge where millions of microfilmed land records needed to be redacted by an outside vendor. See Burnett v. County of Bergen, 198 N.J. 408 (2008) (permitting the agency to pass along the actual cost to the requestor). The Appellate Division permitted a special service charge where deputy attorney generals spent over 55 hours reviewing and redacting 15,000 emails. Fisher v. Division of Law, 400 N.J. Super. 61, 65 (App. Div. 2008).  Finally, the Law Division permitted a special service charge where the requestor sought six-and-a-half years of legal invoices by four different law firms, which totaled thousands of redacted pages. See Courier Post v. Lenape Reg’l High Sch., 360 N.J. Super. 191, 199 (Law Div. 2002).

Generally, however, most special service decisions reside with the GRC.  Though they are not precedential in court, the decisions are instructive.  Recently, in Rozzi v. Lacey Twp. Bd. of Educ., GRC Complaint No. 2015-224 (Jan. 31, 2007), the GRC ruled that a school board could not charge a special service charge for a request where it took the agency four hours to retrieve 37 pages of records from storage. Even though the custodian certified that the requested checks were difficult to locate in numerous boxes in the agency’s storage site, the GRC held that “given the amount of time expended, just over half of a working date, in tandem with the number of responsive records (37 pages) that were not redacted, and the resources available to the school district [(a district with 3,000 students and a $60 million budget)], the evidence of record does not support that the special service charge was warranted or reasonable due to an ‘extraordinary amount of time and effort.’”

As a general rule, most GRC decisions have found no special service charge was warranted where a request took less than ten hours to fulfill, but response times above ten hours may invoke a special service charge for smaller agencies. See Diamond v. Twp. of Old Bridge, GRC Complaint No. 2003-15 (Feb. 18, 2014) (holding 4 hours of time did not justify special service charge); Carter v. Franklin Fire District No. 1, GRC Complaint No. 2013-281/2013-282/2013-283 (Oct. 28, 2014) (holding no special service charge warranted for nearly roughly 8 hours of time to search for emails); Verry v. Borough of South Bound Brook, GRC Complaint No. 2010-105/2010-106. Compare Loder v. County of Passaic, GRC Complaint No. 2005-161 (Feb. 8, 2016) (permitting special service charge where it took 32 hours to review thousands of pages); Vessio v. Twp. of Barnegat, GRC Complaint No. 2006-70 (April 25, 2007)(permitting special service charge where request took 14 hours of review); Renna v. County of Union, GRC Complaint No.: 2004-134 (April 11, 2006)(permitting service charge for nearly 40 hours of time to compile records.).

Often, agencies hold the records “hostage” unless the requestor first pays the fee.  Luckily, our courts have held that paying the fee in order to gain access to the records does not mean that a requestor forfeits the right to challenge the fee in court and get a refund.

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

A4532 Will Hinder Transparency

This week, Assembly Bill A4532 passed out of the State and Local Government Committee and will likely be voted on by the Assembly at some point in the near future.  This bill will severely hinder transparency in this State in two ways.

First, A4532 creates a new exemption for “personal government records,” which are defined as records “that consists of or pertains solely to a pet or home alarm system permit, license, or registration.”  While I understand that the sponsor of the bill is concerned that businesses utilize these lists as marketing tools, these lists can be very valuable resources to members of the public.  For example, animal rights advocates routinely use lists of pet license holders to notify pet owners that the local animal shelter has health code violations or inhumane conditions.  As a result of such activism, shelters have been placed into new management or shut down altogether.  Other animal rights advocates have used the list to expose backyard breeders who do not have their pets licensed.  If these records are exempted from public access, it will be much harder for these advocates to advance their cause.

Second, as it is currently written, A4532 changes OPRA’s mandatory fee-shifting provision so that an agency that acts in “good faith” and is “reasonable” will not have to pay fees even if the court rules in the requestor’s favor. Such a change will gut OPRA.  The mandatory fee-shifting provision is what gives OPRA “teeth” because it permits requestors to sue to gain access to records and be assured that their attorney fees will be covered.  If fees are only provided where the agency was unreasonable or acted in bad faith, then cases of first impression will not be litigated because it will be too easy for the agency to say they were “reasonable” in denying a request since they had no guidance.  Additionally, in any case where there is a conflict in legal authority (such as a GRC decision that conflicts with a court decision), the agency will try to escape fees by saying they were “reasonable” in following one instead of the other.

Simply put, without the assurance of a mandatory fee, requestors will be unable to find attorneys who will represent them on a contingency basis.  This means that cases will not be litigated and the State will be less transparent as a result.

According to John Paff, the sponsors of the bill insist that they did not intend for the fee-shifting provision to be altered as to all types of OPRA cases and only intend to change it as to “personal government records.”  The bill as written, however, simply does not say that.  Moreover, if there is a blanket exemption for “personal government records,” there is no need to change the fee-shifting provision because a requestor will never “prevail” anyway.

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

Split Supreme Court Exempts Security Camera Footage

Yesterday, the Supreme Court of New Jersey ruled in a split decision that security camera footage is not accessible under the Open Public Records Act (OPRA).

About the Case

The case is Patricia Gilleran v. Township of Bloomfield.  Ms. Gilleran* requested video footage from a security camera placed on the outside of town hall, just above the mayor’s parking spot.  Bloomfield denied her request, citing two of OPRA’s security-related provisions that exempt:

emergency or security information or procedures for any buildings or facility which, if disclosed, would jeopardize security of the building or facility or persons therein; [and]

security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software

Bloomfield argued vaguely that what the camera records was a secret and that the tape could possibly contain images of police officers, confidential informants, or members of the public reporting crimes at the law enforcement building next door to town hall.

Both the trial court and the Appellate Division ruled in Ms. Gilleran’s favor, finding that the exemptions were not blanket exemptions that rendered all security camera footage inaccessible under OPRA.  The courts also found that Bloomfield had not met its burden of proving that the exemption applied because 1) the camera was in plain view and it was obvious what the camera recorded, 2) the Township Administrator’s certification did not sufficiently explain why releasing the footage would actually cause harm; and 3) no one from Bloomfield had even watched any portion of the tape to state with certainty what it had recorded or whether it contained any confidential images.

Bloomfield appealed to the Supreme Court, who accepted the case.

About Supreme Court’s Split Decision

The Court issued a split decision, with four justices (Justice LeVecchia, Albin, Solomon, and Fernandez-Vina) voting to reverse the lower courts and two justices (Chief Justice Rabner and Justice Timpone) dissenting.  The majority held that security footage was off limits under OPRA because releasing it “would undermine the security purpose of the camera.”   It found that while there is not a blanket exemption for all security-related records (such as the public bidding documents for the purchase of a security system), that there is a blanket exemption for security camera footage.  The Court held that “knowledge of the vulnerabilities of a security system could allow an ill-motivated person to know when and where to plant an explosive device, mount an attack, or learn the movements of persons, placing a public building or persons at risk.”

Ultimately, though the majority ruled that security footage is exempt from access under OPRA, the Court did conclude that there may still be a common law right of access to security camera footage.  It thus remanded the case back to the trial court to determine whether Ms. Gilleran’s interest in the video footage outweighs Bloomfield’s security needs.

In his dissenting opinion, Chief Justice Rabner wrote that had the Legislature intended to create a blanket exemption for all security camera footage, it would have said so.  In the Chief Justice’s opinion, the Township Administrator’s “general language” in his certification did not establish that releasing the footage would jeopardize the safety of persons, which is what the plain language of the exemptions requires.  The dissenting opinion further noted that OPRA provided Bloomfield numerous remedies, such as reviewing the footage and redacting portions of it that caused concern; negotiating with Ms. Gilleran to narrow the amount of footage requested; or charging a service fee to comply with the request.

What This Means For The Public

The Court’s decision means that there is no right to access security camera footage pursuant to OPRA.  While the Court likely found comfort in holding that there is still a mechanism to gain access to the video footage under the common law, unfortunately the Court’s decision will essentially shut down all access to camera footage.

Why? In an OPRA case, an agency who unlawfully denies access to a record faces litigation and will have to pay the fees of any requestor who prevails.  Thus, agencies are more reluctant to deny access to records because it comes with a big financial risk.  As the Supreme Court previously stated, without OPRA’s fee-shifting provision “the ordinary citizen would be waging a quixotic battle against a public entity vested with almost inexhaustible resources.”   With regard to the common law, however, as the Chief Justice noted in his dissenting opinion, it is generally thought that there are no attorney fees awarded in common law cases (though, there are some decisions that have held otherwise).  Agencies thus have no incentive to grant access to records under the common law, because they know that very few people will have the resources to file a lawsuit and that even if the requestor prevails, the agency will likely not be on the hook for the fees.

To put it simply, would an agency voluntarily give up camera footage that incriminates the mayor in response to a common law request?  Doubtful.  What is more likely is that the agency would deny access to the footage and then battle it out with the requestor in court.  Most media agencies cannot afford such expensive legal battles these days, let alone average people. Thus, denials of common law claims records will go un-litigated.

The media is widely reporting on this case, with stories by NJ Advance Media, NorthJersey.comNew Jersey  Herald, Philly.com, the Washington Times, PoliticoTapIntoBloomfield.   The American Civil Liberties Union of New Jersey, the Reporters Committee for Freedom of the Press, and 18 media organizations filed amici briefs.

*Ms. Gilleran was represented by CJ Griffin of Pashman Stein Walder Hayden, who may be contacted for comment at cgriffin@pashmanstein.com .

The Trentonian Requests Access to 9-1-1 Calls

Attorney CJ Griffin is representing The Trentonian in an lawsuit which seeks access to 9-1-1 calls under the Open Public Records Act.  The Trentonian will ask the Honorable Mary C. Jacobson, A.J.S.C., to compel the Township of Hamilton to release 9-1-1 calls relating to an alleged domestic dispute that occurred at the home of a Trenton police officer.  Hamilton claims that the Domestic Violence Prevention Act bars access to the 9-1-1 calls.  The Trentonian argues, however, that the DVPA (NJSA 2C:25-33) only exempts certain records and 9-1-1 calls are not on the list. Additionally, the DVPA exemption is not absolute – the court may still balance the interests of the parties and release the records.

The Trentonian reported on the story and the lawsuit here: http://www.trentonian.com/article/TT/20161101/NEWS/161109977

Township of Old Bridge Must Release Dash Camera Footage

Recently, the Honorable Travis L. Francis, A.J.S.C. ruled that the Township of Old Bridge must release dash camera footage that depicts the Police Director of Carteret engaged in a DWI violation.  Judge Francis ruled that dash camera footage is not a criminal investigatory record and that it did not pertain to a criminal investigation.

Pashman Stein Walder Hayden attorney CJ Griffin represented Mr. Wronko in this matter.

For the full article, click on the link.