Category Archives: Uncategorized

Are Survey Results Subject to OPRA?

Government agencies often distribute surveys to the public regarding various issues of public concern. Are the completed surveys subject to public access under OPRA? We think so and a court is being asked to decide.

Recently, we learned of an OPRA lawsuit filed by a requestor who seeks the results of a survey that was sent to residents of the Borough of Saddle River. The survey, which was sent by a local veterinarian who serves on the Borough’s Non-Lethal Deer Population Control Committee, asked residents whether they would allow access to their property to carry out a non-lethal deer management plan. When the requestor filed an OPRA request for the survey results, Saddle River denied the request, claiming that the results were ““inter-agency or intra-agency advisory, consultative or deliberative material.”  We think the Saddle River got it wrong.

The deliberative process privilege applies only to inter-agency and intra-agency communications. The privilege is designed to keep internal policy-making documents confidential. Only internal documents (or documents between one government agency and another) that weigh one policy option over another; that make recommendations; or that offer opinions and advice fall within the privilege. Surveys that are completed by the general public are simply not “inter-agency” or “intra-agency” documents and thus the privilege cannot apply.

There may be times when OPRA’s privacy provision (or some other exemption) may apply to allow some information within a survey to be redacted, however. For example, we litigated Flom v. Allendale Board of Education, Docket No. BER-L-9208-15 (Law Div. Jan 7, 2016), where the requestor sought access to surveys that parents completed regarding their level of satisfaction with the district’s special education program. While the survey was intended to be completed anonymously, some parents put personal identifying information about their children on the forms. The court granted access to the survey results, but permitted the district to redact any information from the survey forms that would identify any student since students are entitled to heightened privacy.

Please contact CJ Griffin at cgriffin@pashmanstein.com or 201.270.4930 for further information.

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Newark Releases Its Amazon HQ2 Proposal

We previously blogged about an OPRA lawsuit we filed on behalf of an activist seeking access to Newark’s Amazon HQ2 proposal. We are happy to announce that Newark has now released its proposal to our client.

Newark’s proposal is titled, “Yes, Newark.” As evidenced by the privilege log it attached to the proposal, Newark redacted approximately 6 pages from its 200+ page proposal. These pages contained the financial incentives that Newark is offering to Amazon. All other information has been disclosed. We consider this a significant transparency victory.

“I strongly believe in open government. The people of New Jersey, especially Newark residents, deserve to know what their government is doing,” said Plaintiff Steven Wronko, a transparency advocate.

“Other finalist cities put their proposals online as part of their PR campaigns to win Amazon over. The citizens of those other finalist cities got to be part of the process and see how their cities were being promoted. That builds pride and buy-in from residents. The people of Newark were completely excluded, but we are happy that they can now be part of the process,” said CJ Griffin, who represented Mr. Wronko.

Among other things, the proposal highlights Newark’s diversity, technology infrastructure, and transportation systems. It includes more than 50 pages of letters of recommendations and details the proposed locations within the city for the headquarters:Locations

 

The full proposal may be downloaded here:

Proposal Part 1
Proposal Part 2
Proposal Part 3

Please contact CJ Griffin at cgriffin@pashmanstein.com or 201.270.4930 for further information.

The GRC’s Time Problem

We have always recommended that clients challenge their OPRA denials in Superior Court. Why? Primarily because the process is significantly faster.  An action filed in Superior Court will generally be resolved within 2-4 months in most cases, unless there is an appeal. This expedited process is vital to transparency, especially for reporters who need the records to report news to the public in a timely fashion.

In contrast, we have filed 4 denial of access complaints in the GRC and the process was unbearably long.  One case took 25 months, another 22 months,  and a third took 13 months. The fourth matter is still pending 24 months later, although the GRC did issue an interim decision 19 months into the case. We do not know when a final decision will be issued. OPRA mandates that the GRC handle cases “as expeditiously as possible,” but the GRC does not seem to be living up to that mandate.

Joe Hernandez of WHYY wrote a story about the GRC’s extreme slowness called,  “Appealing a Public Records Request Denial in N.J.? Don’t Hold Your Breath.” Hernandez notes:

The GRC was supposed to be the faster, easier alternative to filing a lawsuit in state court. But a review of the council’s internal tracking system shows it has a backlog dating back to 2014, tying up some cases without a resolution for years.

The story explains that the GRC suffered considerable budget cuts and staffing shortages under the Christie Administration.  Whatever the cause for the GRC delay, we hope that this problem is remedied as too many citizens go to the GRC to file a simple complaint and end up not getting access to the records they sought for years.

 

 

Lawsuit Seeks Newark’s AmazonHQ2 Proposal

On February 20, 2018, Pashman Stein Walder Hayden partner CJ Griffin filed an OPRA lawsuit against the City of Newark on behalf of long-time client Steven Wronko.  The lawsuit seeks access to a copy of Newark’s AmazonHQ2 proposal.

For our prior press release about the suit and a copy of the complaint, click here.

On March 26, 2018, Newark moved to dismiss Plaintiff’s complaint. In support of its motion, Newark submitted a certification by Aisha Glover, Executive Director of the Newark Community Economic Development Corporation (“NCEDC”), which simply stated that a) Newark is bound by a non-disclosure agreement and b) Newark would be at a competitive disadvantage if it released its proposal.   Newark’s motion brief and Glover’s certification (with the non-disclosure agreements) can be found here and here.

On April 3, 2018, Plaintiff opposed the motion to dismiss. Plaintiff’s brief can be found here and his argument is summarized as follows:

  • The non-disclosure agreement a) only applies to information that Amazon has disclosed to Newark and b) expressly states that agencies may comply with their public records laws
  • Newark has not offered any evidence regarding type of content within its proposal and why releasing that type of information would put it at a competitive disadvantage. Our courts have repeatedly held that an agency cannot overcome OPRA’s presumption of access by simply making a conclusory statement that a record is exempt or that harm will occur if a record is released.
  • Many of the details that Newark says it cannot release without putting it at a competitive disadvantage have already been released by Newark itself.  For example:
    • Newark states that the proposed site locations for Amazon HQ2 are secret, yet in December it took a group of reporters on a bus tour of those locations and even provided renderings directly from its proposal!  To see those renderings and read about the tour, check out these stories and slideshows by Real Estate NJ, ROI-NJ, and NJ.com.
    • On the tour, Newark discussed specific details of what it included in its proposal, such as touting its fiber optic infrastructure and internet speed.
    • Newark states that its incentives are top secret, but the Legislature’s $5 billion incentive package and Newark’s commitment to $2 billion in additional incentives has already been disclosed to the public.
  • Newark has not proven that its proposal cannot be released in redacted form to protect any remaining non-public information while permitting the public to see the bulk of the proposal. OPRA requires records to be redacted so that non-exempt information is released. Many of the finalist cities have taken this approach and have released their proposals with redaction to non-public information. Some finalist cities, such as Boston and Washington D.C., have even gone so far as to create entire websites as part of their pitch, which contain their proposals.  Newark, however, denied complete access to its proposal, even though it has disclosed much of the information within it to the press already.

Hearing:
The Honorable Jeffrey B. Beacham, J.S.C., will hear oral argument on Friday, April 20, 2018 at 9:00 a.m. at the Essex County Historic Courthouse in Newark, NJ.

 

 

An Appellate Division Win

Today, PSWH secured an appellate victory for two long-term firm clients, Richard Rivera and Collene Wronko.

The case involved OPRA requests for records from the Middlesex County Prosecutor’s Office (MCPO) which related to an incident where police officers shot and killed a man outside his home in Old Bridge. Both Mr. Rivera and Ms. Wronko sought access to the 9-1-1 call of the incident, as well as other police records, such as CAD reports and Standard Operating Procedures. Their requests were denied.

After lawsuits were filed, MCPO eventually released a redacted version of the 9-1-1 call. The judge upheld those redactions, ruling that those portions of the call raised serious privacy concerns. The judge also ordered MCPO to release CAD reports and Standard Operating Procedures, but permitted redactions to any exempt material. Despite the fact that both Ms. Wronko and Mr. Rivera got exactly the relief they were seeking in their lawsuits (lawfully redacted records), MCPO insisted that they were not entitled to full reimbursement of their fees.  Judge Francis disagreed and found that both requestors were fully prevailing parties and awarded approximately $22,000 in fees and costs.

MCPO appealed, again arguing that the requestors were only “partially” prevailing parties since they received only redacted records. The Appellate Division affirmed Judge Francis’ decision, describing MCPO’s arguments as “factually inaccurate and lack[ing] merit.”

The MCPO lost two other appeals involving media companies who had requested the same 9-1-1 call, bringing the total cost for denying access to the 9-1-1 call to over $130,000.  Because MCPO lost its appeals, the requestors will be entitled to additional fees for the appellate work.

A copy of the decision may be found here.

Media Coverage:

Middlesex County Prosecutor’s Office to Pay $20k in OPRA Case,” MyCentralNewJersey.com (Mar. 20, 2018).

Middlesex Prosecutor Again Loses on OPRA Fees Issue,” N.J. Law Journal (Mar. 20, 2018).

Appellate Division Rules Agencies Cannot Hide Behind Technology

Last week, the Appellate Division issued a published decision that is very important to transparency.  While the court’s analysis of its standard of review over GRC decisions will excite appellate attorneys, it is the more substantive portion of the court’s decision that grabbed our attention.

The case is Conley v. N.J. Dep’t of Corrections, ___ N.J. Super. ___ (App. Div. Jan. 12, 2018), and it involves an OPRA request that was filed by Kevin Conley, an inmate at the New Jersey State Prison.

Mr. Conley’s OPRA request sought “monthly remedy statistical reports” that were required to be produced by N.J.A.C. 10A:1-4.8(a)(4) and other federal laws. He had requested these reports in the past and they were always produced, but this time the DOC responded by saying that it had adopted a new computerized database in January 2014 and the requested monthly reports “are no longer generated or available.”

Mr. Conley objected, noting that he had always gotten the reports before and that the DOC was mandated by law to produce these monthly reports. The DOC continued to deny the request, insisting that it no longer generates the reports and that it was not obligated to “create a record.”

Mr. Conley filed a complaint on his own in the Government Records Council (tip: we advise going to court instead!) and lost. The GRC accepted the DOC Custodian’s certification that it did not possess the monthly reports and ruled that it did not violate OPRA.

The Appellate Division reversed the GRC. It noted that the DOC was mandated by federal and State regulations to make the monthly reports. It held that were it to accept the DOC’s argument that the report was no longer available based on the manner by which DOC chose to store this public data, it would render “the public policy of transparency and openness the Legislature codified in [OPRA] unacceptably vulnerable to bureaucratic manipulation.”

Importantly, the Court held that “[t]echnological advancements in data storage should enhance, not diminish, the public’s right to access ‘government records’ under OPRA . . . . A government agency cannot erect technological barriers to deny access to government records.”

What does this mean for OPRA requestors?  This case builds upon the Supreme Court’s recent holding in Paff v. Galloway, which held that electronically stored information is a government record that must be produced. Where an agency is obligated by law to produce a certain type of report or a specific document each month (or year) and it fails to do so because it has moved to an electronic database, it cannot avoid its obligations under OPRA. It would need to pull data from its database to produce the report/document to the requestor.

For assistance with OPRA matters, please contact CJ Griffin at 201-488-8200 or cgriffin@pashmanstein.com.

Griffin to Give OPRA Training in River Edge

PSWH Partner CJ Griffin will be giving an OPRA training on Tuesday, January 23, 2017 at 6:30pm at the River Edge Public Library, 685 Elm ave, River Edge, NJ.

This event is free and open to the public.  Come learn about the nuts and bolts of filing an OPRA request!

This event is sponsored by Indivisible NJ 5th District, Glen Rock People Power, Ridgewood JOLT, Glen Rock after the March, Women for Progress, and Ramsey Pins!

Appellate Division Significantly Expands Student Records Exemption

It is widely accepted that student records are exempt from public access under OPRA, either under the Federal Education Rights and Privacy Act (“FERPA”) or New Jersey’s Pupil Records Act (“NJPRA”). In other words, everyone accepts that students are entitled to privacy and that the public is not able to access grade cards, discipline records, and other sensitive information. However, when it comes to records that relate to an individual student but involve a significant expenditure of public funds, such as settlement agreements, most courts have permitted access to them so long as the record is redacted so that the student cannot in any way be identified.

Last week, however, the Appellate Division changed course when it issued L.R. v. Camden City Public School District. In a published decision that will be binding upon all trial courts, the Appellate Division shut down all access to any record that “relates” to an “individual student.” The public is no longer entitled to even a redacted copy of the record. Their reasoning? The NJPRA exempts “information related to an individual student” and a record still “relates” to an individual student even if it is de-identified. The Court explained its reasoning:

For example, a document reflecting a school district’s settlement of claims for special services by a hypothetical disabled student, Mary Jones, remains a “student record,” even if her name and other personal identifiers are removed from the settlement agreement. The record still “relates” to Mary Jones and discusses aspects of her life. The document does not cease becoming a “student record,” or change its fundamental character, even if, say, a redacting employee took an extra-wide marker to mask the child’s name, address, Social Security number, and other demographic information, or replaced the actual names within it with fictitious names. Jane Eyre surely was Charlotte Bronte’s novel even though it bore the pen name of “Currier Bell”; likewise the works of Samuel Clemens were no less his own despite being issued under the pseudonym of “Mark Twain.”

Of course, we only know that Charlotte Bronte authored Jane Eyre because she revealed that fact. Had she chosen to remain anonymous, no one would know that Jane Eyre “relates” to Charlotte Bronte.

The problem with the decision is that it fails to consider NJPRA’s purpose: to provide students with “reasonable privacy.” N.J.S.A. 18A:36-19. That goal is fulfilled by de-identifying student records. Beyond our state courts, numerous federal courts have also held that a de-identified record no longer “relates” to an individual student and is thus no longer exempt under FERPA.

The Appellate Division’s decision is overbroad. It will exempt any and all settlement agreements relating to students. This means the public will have no way of monitoring how its school board is spending money. Did the school board pay its own attorneys $200k to fight a trip-and-fall suit worth $10k? The public will have no way to know, because now those settlements have now been rendered categorically exempt—despite the fact that the lawsuit itself was publicly filed and available through a courts record request.

School boards will no doubt utilize the L.R. decision to exempt all sorts of records. Was an individual student discussed in a closed session? If so, a school board will no doubt try to use L.R. to justify non-disclosure of those minutes—even though redaction would suffice to protect the student’s privacy.

The Appellate Division recognized that this case is worthy of Supreme Court review and stayed its decision. Hopefully, the Supreme Court will restore a common sense approach that protects the privacy of students, but also permits the public to provide financial oversight over school boards. In other words, redaction can simultaneously advance the NJPRA’s goal of ensuring a student’s reasonable privacy and OPRA’s goal of promoting transparency.

 

 

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.

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.