A Sunshine Week Win on Payroll Records

Today, Pashman Stein Walder Hayden secured a victory for our client, Jennifer Coombs, in an OPRA case against the Borough of Westwood.

Ms. Coombs had requested payroll records from Westwood for all employees working for the Borough in 2017.  Westwood responded to Ms. Coombs’ request by providing a payroll report, but redacting the names of numerous employees from it. Westwood stated that the redacted names were of minor employees who worked in the summer recreation program and that they were entitled to privacy.  After Ms. Coombs objected, Westwood released a new version of the report, but included only initials instead of names for all employees under the age of 18.  Ms. Coombs filed suit and Westwood opposed, insisting that OPRA’s privacy provision permitted non-disclosure of the names.

Today, the Honorable Bonnie J. Mizdol, A.J.S.C., ruled in Ms. Coombs’ favor. The judge noted that N.J.S.A. 47:1A-10 provides that notwithstanding any other law to the contrary, a government employee’s “name, title, position, salary, payroll record” and other enumerated information is accessible under OPRA. Thus, the judge ordered disclosure of the payroll records without redactions to the names of the minor employees, ruling that OPRA’s privacy provision was not applicable and that government employees have no reasonable expectation of privacy over their name and salary information.

“The language of the statute could not be any clearer,” said PSWH Partner CJ Griffin, who represented Ms. Coombs. “While most personnel records are exempt from access, the Legislature has declared that the public is always entitled to basic information about government employees, including their names and salaries. To rule that the identities of certain categories of employees could remain secret would permit unchecked nepotism or corruption to occur.”

Westwood has until March 20, 2018 to produce the payroll records. Judge Mizdol also ruled that Ms. Coombs’ is entitled to an award of attorneys’ fees for prevailing in the suit.

Click here for a copy of the decision.

For questions or comments, please contact CJ Griffin at 201-270-4930 or cgriffin@pashmanstein.com

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AG Issues New Police Shooting Video Directive

Last week, Attorney General Gurbir S. Grewal issued Attorney General Law Enforcement Directive No. 2018-1, which provides instructions to law enforcement agencies in this State regarding public access to dash camera and body camera footage of police-involved shootings.  We find that there are both pros and cons to this new directive.

Pros:
On one hand, we are very happy to see that the new Attorney General clearly understands that transparency advances public trust in law enforcement. The overall spirit of this directive is positive and it recognizes that law enforcement do not need permanent confidentiality over their records–the directive requires disclosure of police shooting videos within 20 days, in most cases. The presumption of access is important and we hope that agencies will follow the directive and will not seek constant extensions of time to release these videos.

Cons:
On the other hand, the new directive does not give the public any more access than already existed pursuant to the Supreme Court’s decision in North Jersey Media Group v. Township of Lyndhurst. If anything, the new directive may make access to police shooting videos slower, as the Lyndhurst decision held that access must be granted “within a few days” and the new directive sets a timeline of 20 days.  We fear that  requestors will now need to wait for 20 days after an incident to file an OPRA request, then wait an additional 7 business days to gain access to the video. This is much slower than what we have experienced the past several months since the Lyndhurst decision was issued.

We are also disappointed that the directive only applies to videos which depict the use of deadly force or where other force results in “serious bodily injury.”  We think that the spirit of the Lyndhurst decision makes it clear that most police videos should be released relatively soon after an incident occurs, but the new directive applies Lyndhurst very narrowly and the public will still struggle to gain access to police video which shows other types of misconduct or more minimal uses of force.  For example, we think that if a police officer uses a racial slur toward a suspect while arresting them, the public should be able to see the video.  The new directive, however, would not require disclosure unless the suspect was seriously injured.  This is problematic.

News Coverage:
PSWH Partner CJ Griffin was quoted in NJ Advance Media’s article on the new directive.

 

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

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!

OPRA Training in Clifton, NJ

On December 12, 2017, CJ Griffin will speak at the Clifton ASAP (Advocating Solutions and Progress) Group in Clifton, NJ.

Griffin will give a presentation on the Open Public Records Act (OPRA) and answer questions from the public. The event is free and all are welcome to attend.

When: December 12, 2017 at 7pm
Where:  Allwood Public Library, 44 Lyall Road, Clifton, NJ
Who: Clifton ASAP Group

All may attend. Cost is free.

How to Monitor Police Agencies: Part 3

In this third part of our series about using OPRA to monitor police agencies, we will discuss how to ensure that individual officers meet the qualifications for their duty assignments and are properly trained.

Generally, personnel records are exempt from access under OPRA. However, we previously blogged about the personnel records exemption and explained that there are three exceptions. The third exception provides that the following records are accessible:

data contained in information which disclose conformity with specific experiential, educational or medical qualifications required for government employment or for receipt of a public pension, but not including any detailed medical or psychological information, shall be a government record.

[N.J.S.A. 47:1A-10.]

This means that you are able to obtain any records which prove that an employee meets the requirements of the job.

For police officers, this means that you can obtain training certificates for courses that they are required to take in order to take in order to be police officers. Among the required courses that every police officer in New Jersey must complete include:

  • basic police academy training
  • annual firearms requalification training
  • use of force training
  • vehicular pursuit training
  • domestic violence training
  • cultural diversity training
  • bias intimidation crimes training

Other courses may be necessary in order for a police officer to be promoted or to hold a specific duty assignment. Some of these courses include:

  • Breathalyzer training courses and recertification for those who operate breathalyzers
  • 911 dispatcher and call-taker training and recertification for those who work in 911 call centers
  • K-9 training for those who work with canine partners

Any of these records can be requested and will help the public ensure that officers are properly trained and qualified for the positions that they hold.

Sample OPRA requests:
“Pursuant to OPRA and the common law, I seek the Officer Jones’ use of force training certificates for years 2015-2017.”
“Pursuant to OPRA and the common law, I seek the annual firearms recertification certificates for all of the police officers in your police department for the year 2017.”

How to Monitor Police Agencies: Part 2

We recently blogged about how you can use OPRA to gain access to records which shine light on the use of force by police officers. This blog discusses other types of police records that will help you monitor your local police department.

Internal Affairs Annual Summary Reports:

The Attorney General’s Internal Affairs Policy requires law enforcement agencies to release an annual summary report to the public which “summarizes the types of [internal affairs] complaints received and the dispositions of those complaints.” This report, usually in the form of a chart, will help you monitor the types of complaints that are being lodged against officers.

Sample OPRA request:

“Pursuant to OPRA and the common law, I seek your police department’s Internal Affairs Annual Summary Report for 2016.”

Internal Affairs Public Synopsis of Disciplinary Action:

Requirement 10 of the Attorney General’s Internal Affairs Policy also requires law enforcement agencies to periodically disclose to the public “a brief synopsis of all complaints where a fine or suspension of ten days or more was assessed to an agency member.” While the report will not identify the officer by name, it should briefly outline the nature of the transgression and the fine or sentence that was imposed. This permits the public to see details of more serious internal affairs allegations that were sustained and will highlight an agency’s most egregious problems.

Sample OPRA request:

“Pursuant to OPRA and the common law, I seek your agency’s Public Synopsis of Disciplinary Actions for years 2014 to 2017. This report is required pursuant to Requirement 10 of the Attorney General’s Internal Affairs Police.”

Vehicle Pursuit Reports:

Vehicle pursuits not only put the suspect and police officers at risk, but also other people who happen to be in their way. Every year there are reports where innocent bystanders are injured or killed when a vehicle slams into theirs during the course of a police pursuit.

There are two reports which will help you monitor vehicle pursuits. First, pursuant to the Attorney General’s Police Vehicular Pursuit Policy an officer must complete a “Police Pursuit Incident Report” for every pursuit. If you read about a pursuit in the newspaper, you can request this report to find out more details about who was involved in the incident.

Second, the Attorney General’s policy requires every municipal police agency to submit an annual agency “Vehicular Pursuit Summary Report” to the county prosecutor, which will detail the total number of pursuits and other useful information. You can compare these reports to other towns or look to see if any particular officer engages in pursuits more frequently.

A sample of both reports can be found here:

Sample OPRA request:

“Pursuant to OPRA and the common law, I seek a copy of the Police Pursuit Incident Report for the vehicle chase that occurred last night near Exit 151 on the Garden State Parkway and the police department’s Vehicular Pursuit Summary Report for 2016.”

How to Monitor Police Agencies: Part 1

Police officers have the ability to arrest and detain suspects, to seize property, and to lawfully use force against people when justified.  Because police officers are given these tremendous powers, we hold them to very high standards—we expect that they will be honest, trustworthy, and follow the law and the Constitution.

In a two-part series, we will discuss how you can use OPRA to monitor police conduct. This blog highlights records you can request to monitor the use of force by police officers.

Use of Force Reports:

Pursuant to the Attorney General’s Use of Force Policy, every time an officer uses any level of force against an individual they must complete a Use of Force Report (“UFR”).  A UFR is a simple one-page report that provides information about a specific use of force incident, such as the names and biographical data of those involved and the type of force that was used. A model form is available here.

You can request UFRs relating to a single specific incident of force that you read about in the news or you can request all of an agency’s UFRs for a specific timeframe. By requesting all of an agency’s UFRs during a specific timeframe, you can determine how often force is used and whether there are any patterns that emerge, such as whether a specific officer uses force far more frequently than other officers or whether certain races are the target of force more often than others.

Sample OPRA requests:
“Pursuant to OPRA and the common law, I would like all of your police department’s Use of Force Reports from January 1, 2017 to present date.”

“Pursuant to OPRA and the common law, I seek all UFRs that were created as a result of the police-involved shooting that occurred on May 1, 2017 involving a suspect named Bob Jones.”

Police Use of Deadly Force Attorney General Deadly Notification Report:

Where deadly force is used, a “Police Use of Deadly Force Attorney General Deadly Notification Report” must also be completed. This is true even if the deadly force does not actually result in death. If a police officer shoots at someone, that action constitutes the use of deadly force even if the officer misses. A model AG Notification Report is available here.

Sample OPRA request:
“Pursuant to OPRA and the common law, I would like all of your police department’s Police Use of Deadly Force Attorney General Deadly Notification Reports for the year 2016.”

Body-Worn Camera Footage:

Recently, The Lab @ DC released a report which suggests that Body Cams do not change police behavior and cause them to use force less often.  Body Cams do, however, promote transparency over the police. For example, The Trentonian has recently published Body Cam footage that has exposed police officers bragging about roughing up suspects. The public obviously has a significant interest in knowing that its officers are behaving this way so that it can advocate for discipline or leadership change.

Because Body Cam Footage is required to be made and maintained by Attorney General Law Enforcement Directive No. 2015-1, it cannot be exempt under OPRA’s criminal investigatory records exemption. It may, however, be exempt under the ongoing investigation exemption depending on the nature of the tape, when it was created, and whether releasing it would be harmful to the public interest. The Supreme Court, however, has said that the public’s interest is in disclosure where police use of force is involved and that an agency should not need to withhold police video for more than a few days in most instances.

Sample OPRA request:
“Pursuant to OPRA and the common law, I seek all Body-Worn Camera Footage for the police-involved shooting that occurred on 5/1/17 at 29 Main Street.”

Dash Camera Footage:

The Supreme Court has recently ruled that dash camera videos that relate to criminal incidents are not subject to OPRA because there is no law that requires it to be made, thus it is a criminal investigatory record. That may change when the Court decides Paff v. Ocean County Prosecutor’s Office next year. In the interim, the Court has made it clear that dash cam footage should be routinely disclosed under the common law right of access.  Accordingly, make sure to invoke the common law when you file your records request.

Dash camera footage that relates to a non-criminal incident, however, is subject to OPRA. So, if your mayor was caught on tape after being pulled over for a DWI, that video should be publicly accessible.

Sample OPRA request:
“Pursuant to OPRA and the common law right of access, please provide all dash camera footage from the incident that occurred on October 1, 2017 wherein Mayor Jones was pulled over for a DWI.”

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.