Tag Archives: NJ Opra

Vendor Activity Reports: A Helpful Tool for Tracking Spending

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

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

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

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

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

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

CJ Griffin Interviewed for Marketplace Reports on NPR

CJ Griffin, a member of Pashman Stein Walder Hayden’s Media Law Group, was interviewed by Marketplace regarding a prior OPRA lawsuit she brought against the City of Newark seeking its Amazon HQ2 bid.

The public radio program, “What’s in Those Amazon HQ2 Bids? It’s Not Entirely Clear” by Renata Sago and Leila Goldstein, aired on Tuesday, November 6th.

“There’s hundreds of millions or billions of dollars, of tax dollars, at stake,” said CJ Griffin, a partner at Pashman Stein Walder Hayden, who argued the case. “That’s taxpayer money. When you give tax breaks, that impacts other people, so the public has a right to know.”

To listen to the story, click here

For more background on the lawsuit, click here.

New Jersey Supreme Court Issues Important Ruling on OPRA’s Privacy Provision

CJ Griffin of Pashman Stein Walder Hayden Submitted Amicus Curiae
Brief on Behalf of Non-profit Organization
in Brennan v. Bergen County Prosecutor’s Office

Hackensack, NJ (May 23, 2018) – The Supreme Court of New Jersey has issued its opinion in Brennan v. Bergen County Prosecutor’s Office, in which Pashman Stein Walder Hayden partner CJ Griffin submitted an amicus curiae brief on behalf of Libertarians for Transparent Government, a non-profit organization. The Court’s decision today provides important guidance to lower courts on how to apply the Open Public Records Act’s privacy provision.

The case involved an OPRA request by an activist seeking the names and addresses of individuals who had purchased sports memorabilia from the Bergen County Prosecutor’s Office (“BCPO”) during a public auction. The auction received considerable news attention.

The trial court ruled that the names and addresses of the successful bidders were disclosable under OPRA, but the Appellate Division reversed. It found that the bidders had a reasonable expectation that their names and addresses would remain confidential. The Supreme Court reversed, finding that “the sale of government property at a public auction is a quintessential public event that calls for transparency.”

Griffin, who also participated in oral argument before the Supreme Court, argued that there is no reasonable expectation that your identity will remain private when you engage in financial transactions with the government and that home addresses are generally not entitled to any level of protection. According to Griffin, this case was just one example of how lower courts have over-applied OPRA’s privacy provision.

“Today’s decision is important not only because the requestor will be able to learn about who purchased government property, but also because the Supreme Court made it abundantly clear that OPRA’s privacy provision should be applied only in the unique cases where there is truly a legitimate privacy interest at stake,” said Griffin.

In 2009, the Supreme Court issued Burnett v. County of Bergen, its first opinion analyzing OPRA’s privacy provision. In Burnett, the Court was faced with a request that sought access to millions of records which contained names, addresses, and social security numbers. The Court held that where a citizen has a reasonable expectation of privacy, lower courts must apply a 7-factor balancing test that allows a requestor to gain access to records only if his or her interest outweighs the privacy interest. According to Griffin, Burnett has been over-applied to instances where there is no reasonable expectation of privacy. Today’s decision should correct that practice; the Court held that courts should apply the Burnett factors “only where a party first presents a colorable claim that public access to records would invade a person’s reasonable expectation of privacy.”

“The lower courts have been applying the Burnett balancing test any time an agency claims privacy as a defense, no matter how frivolous the privacy claim is. This practice has engrafted an interest requirement into OPRA where one should not exist,” said Griffin. “Today’s decision is exactly what we wanted from the Court and will hopefully cause lower courts to restrain from applying a balancing test where one is unnecessary.”

Today’s decision also makes it clear that there is generally no privacy interest in a home address. The lower courts have been split on this issue, with some appellate panels ruling that home addresses are exempt and others ruling that home addresses are accessible. The Government Records Council, an administrative agency tasked with adjudicating denials of access, has generally found that home addresses are exempt.

“Public access to home addresses is important,” said Griffin. “For example, New Jersey has residency requirements for government employees and public officials. If home addresses are redacted from records, the public cannot verify that these residency requirements are actually satisfied.”

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

About Pashman Stein Walder Hayden

Pashman Stein Walder Hayden is a full-service mid-size business law firm offering a wide range of corporate and personal legal services. Headquartered in Hackensack, New Jersey with an office in Red Bank, New Jersey, the firm serves a diverse client base including regional Fortune 500 companies, emerging growth entities, and individuals, as well as out-of-state corporate counsel, law firms and individuals with interests in the New York metropolitan region. For more information, please visit www.pashmanstein.com. The firm also publishes an OPRA blog at www.njopra.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.

My OPRA Request Was Denied. Now What?

OPRA requires public agencies to respond within 7 business days of your request. (Tip: Begin counting the first business day after you filed the request).  A public agency must respond within 7 business days and either: 1) Produce responsive records; 2) Tell you that access is being denied and reason for the denial; or 3) Ask for an extension of time to respond.

But what do you do if the government fails to respond (a deemed denial) or denies access to a record that you know is not exempt?

The best course of action is to immediately speak to an attorney, who can work with you to gain access to the records.   This frequently requires a lawsuit filed in Superior Court.  The most important thing to remember is that your action must be filed within the statute of limitations, which is 45 days. The process for filing a lawsuit in Superior Court is as follows:

  1. A Verified Complaint and Order to Show Cause is filed.  Each county has a designated “OPRA Judge” who will hear the matter.
  2. The OPRA Judge will review and sign the Order to Show Cause, which sets a briefing schedule and a hearing date.
  3. The pleadings are then served upon the public agency and custodian.
  4. Often, a public agency may work with your attorney to settle the case by producing records and paying the attorneys’ fees.
  5. If the parties are unable to settle, the agency will file an answer and opposition to your lawsuit.
  6. Your attorney then has an opportunity to file a reply brief
  7. A hearing is held, wherein the judge will hear arguments from both sides. For simple cases, the Judge will usually enter a ruling that day. More complex cases may require a little more time for an opinion to issue. In certain circumstances, the court may allow for discovery (interrogatories, depositions) to occur.
  8. If you win, the Judge will order the agency to produce records to you and your attorney will file a fee application asking the Court to order the agency to pay your counsel fees and costs of suit.  (Many attorneys, like Pashman Stein Walder Hayden, represent requestors on a contingency basis which means that if you lose, you will not owe any counsel fees).

Again, the most important thing to remember is that there is a very short timeline for filing the initial Verified Complaint – 45 days from the date your request was denied (or, if the agency fails to respond, the date the response was due).

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

 

 

Sunshine Week: Rich Rivera

Today’s Sunshine Week profile features Rich Rivera, a police practices expert who uses OPRA to monitor police misconduct and the use of force by police officers on citizens.  Mr. Rivera is the Chairman of the Latino Leadership Alliance of New Jersey’s Civil Rights Protection Project, which addresses the community’s needs relating to police services and police interactions. He is a former Board Member of the ACLU of New Jersey, where he co-authored the report “The Crisis Inside Police Internal Affairs.”  Pashman Stein has litigated several cases on Mr. Rivera’s behalf.

Interview with Rich Rivera:

  1. When and how did you initially become interested in the open government movement?

In the late 1990s, when I began researching policing in New Jersey.

  1. What types of government records or open government issues interest you most?

Anything relating to policing, as well as government efficiency and draconian government policies.  All of my requests are made to work towards reform and government transparency.

  1. How many OPRA requests do you file a year? How many times would you estimate the public agency violates OPRA? Of those, how many do you actually litigate?

I file over 100 requests each year. Custodians violate OPRA in about half of my requests, but I litigate about five instances a year. So overwhelmingly, the violations go unchecked.  I gave up on GRC complaints more than 5 years ago and file exclusively in Superior Court now, where you get results faster.

  1. If you could persuade the Legislature to amend OPRA, what would be your top suggestions?

I would ask the legislature to give some teeth to upholding public records access and to develop penalties for the unlawful destruction of public records.  As it stands, there are some entities that purge records after public access requests and that’s simply a crime.  But, an OPRA requester has no real recourse when that occurs.

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

Sunshine Week: Pat Gilleran

Today’s Sunshine Week profile focuses on Pat Gilleran, a client for whom Pashman Stein has litigated many OPRA matters.  Pat is an open government and animal rights activist.  Pat’s litigation has been instrumental in forcing non-profit business improvement districts to comply with OPRA’s provisions.  Presently, Pashman Stein is defending an appeal on Pat’s behalf relating to video footage from a surveillance camera outside the Bloomfield Municipal Building. While the trial court ruled in Pat’s favor and held that the footage was subject to OPRA, Bloomfield has refused to release the footage.  A decision from the Appellate Division is expected soon.

Interview with Pat Gilleran:

  1. When and how did you initially become interested in the open government movement?

I attended a class that the legendary Martin O’Shea (a plaintiff in numerous landmark OPRA cases) gave in Bloomfield in 2008 (I think). I also found NJFOG and attended a seminar in 2013.

  1. What types of government records or open government issues interest you most?

Meeting minutes especially closed session meetings; Animal rights issues at Municipal Shelters;  501(c)3 organizations that are created and controlled by municipalities and ensuring that they comply with OPRA and OPMA; Eminent domain; Local (including county) finances; ELEC reports that can then be compared with contract awards; Records of contamination and cleanups.

  1. How many OPRA requests do you file a year? How many times would you estimate the public agency violates OPRA? Of those, how many do you actually litigate?

I filed my first OPRA request in 2010 – it was for Bloomfield Town Council meeting minutes.  The response was disheartening in that I was told that meeting minutes would not be produced, but that video was available to the tune of $20 per meeting.

I filed 53 OPRA requests in 2012 (it was reported in the local paper) and didn’t have an attorney so zero were litigated. I’d say that about 20% of the responses violated OPRA in that they were incomplete or that they denied that records were available. In 2013, the number of requests that I filed went up to 82 (I know because someone OPRA requested all of my OPRA requests).  I still didn’t have an attorney so zero were litigated, but at least 20% of the responses violated OPRA.

2014 was a banner year for me. My strategy changed. I was connected with my attorney CJ Griffin and figured out that in order for the public agencies to start complying with OPRA, there had to be some court sanction of their wrongful denials.  I filed over 100 requests and 9 were litigated, all of which were victories for me because the public agencies had so clearly violated OPRA.  One of those cases relating to security camera at the Bloomfield Municipal Building is on appeal.

For 2015, I have filed about 50 requests so far this year. At least 50% of the responses (or lack thereof) have violated OPRA.

  1. If you could persuade the Legislature to amend OPRA, what would be your top suggestions?

A more lenient standard for personal penalties for Municipal Clerks that willfully violate OPRA and withhold documents. Support of the Open Public Meetings Act by mandating attorney fees for those who file OPMA violations. Penalties for excessive and unwarranted extensions.

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

Pashman Stein Secures OPRA Win in Police Shooting Case

Recently, Pashman Stein secured a victory in the case North Jersey Media Group v. Township of Lyndhurst, et al.  Below are links to media covering this important decision, in which the Hon. Peter E. Doyne, A.J.S.C., ruled that the Defendant public agencies violated OPRA and compelled the Defendants to produce records relating to the police shooting of a man in Lyndhurst in September 2014.

http://www.nj.com/bergen/index.ssf/2015/01/judge_orders_release_of_records_in_fatal_bergen_co.html

http://www.northjersey.com/opinion/opinion-editorials/access-to-public-records-1.1194621 

http://www.northjersey.com/news/judge-rules-police-must-avoid-delays-in-public-records-requests-1.1192002