Tag Archives: njopra

Transparency Becomes COVID-19 Victim

As we previously wrote on this blog, the Legislature amended OPRA in mid-March 2020 in response to the COVID-19 pandemic. Now and in the future, during a public health emergency, state of emergency, or state of local disaster emergency, a public agency no longer needs to respond to an OPRA request within seven business days.  Instead, an agency must only make “a reasonable effort, as the circumstances permit, to respond to a request for access to a government record within seven business days or as soon as possible thereafter.” N.J.S.A. 47:1A-5(i)(2).

Journalists Expose Transparency Issues

The COVID-19 pandemic has become a roadblock for the news media and those who seek information from the government. Reporters from NorthJersey.com, the Star Ledger, and the Associated Press collaborated and published three news stories today reporting about the serious lack of transparency in New Jersey during COVID-19. The articles discuss not only the State’s over-use of a confidentiality provision in the Emergency Health Powers Act to keep reporters from gaining important information about the State’s response to COVID-19, but also the fact that some counties and municipalities have essentially shut down their OPRA responses altogether. Other agencies are taking lengthy extensions, making it hard for reporters to report about local news. As NorthJersey.com wrote in its article:

Response to New Jersey’s amended law has been mixed, and some places continue to provide records in seven days. Others, like Jersey City, tell people not to expect a response at all.

“Due to the active state of emergency in relation to COVID-19, the City of Jersey City will not be able to respond to OPRA requests within seven (7) business days,” the city’s website says. “The City appreciates your patience during this difficult time.”

. . .

Dozens of government bodies from Hawthorne to Wildwood Crest have sought extensions and referenced or cited the pandemic as a reason, according to data provided by OPRAmachine, a website that helps residents submit record requests and tracks and analyzes the responses from public officials.

Delays range from a few days to weeks, and often cite closed municipal buildings and lack of staff. The website provides just a snapshot of the response, because most records requests across the state aren’t publicly tracked.

“This is very troublesome and a crisis unto itself,” said Pashman Stein Walder Hayden partner CJ Griffin. “We know from experience that secrecy inevitably leads to corruption, misconduct, waste and abuse. OPRA was enacted to permit the public to keep a watchful eye on government, but right now it can’t perform that function in many municipalities across this state.”

Today’s reporting follows an earlier article by New Brunswick Today, which also expressed concern about the State’s rush to amend OPRA and pointed out that public agencies have a long tradition of violating OPRA’s statutory deadlines in the past:

Advocates for transparency found the altered OPRA law confusing, given that records clerks often respond to requests within the seven business days only to make a request of their own: for an extension for more time to put together a substantive response.

Many government agencies have been known to play games with those who request records, asking for extension after extension, only to come back with a final decision that the request was improper or that the records cannot be released. Still others can’t seem to meet their own self-imposed timelines, and need to be reminded repeatedly about outstanding requests.

Guidance from the GRC

Recently, the Government Records Council took the extraordinary step of issuing a “Special Statement” on the amendment to OPRA, providing guidance on how it will determine whether an agency’s response is reasonable when receives denial of access complaints:

Please note that any dispute over extensions will be reviewed on a case-by-case basis because OPRA does not include a limitation on requesting extensions. However, the GRC’s analysis of this issue has included recognition of “extenuating circumstances.” Those circumstances would include, but not be limited to, retrieval of records that are in storage or archived (especially if at a remote storage facility), conversion of records to another medium to accommodate the requestor, emergency closure of the public agency, or the public agency’s need to reallocate resources to a higher priority due to force majeure.

In closing, the GRC stresses that custodians within agencies operating under normal business hours during an emergency, even if closed to the public or working off-site, are obligated to respond to OPRA requests upon receipt in due course to the extent possible. Additionally, custodians should proactively advise the public (by website notification and/or other methods) if the method of transmission for OPRA requests has changed or been limited due to a state of emergency. Similarly, members of the public wishing to submit OPRA requests should contact the applicable public agency for updates on any limitations or disruptions affecting the OPRA process during a state of emergency.

Courts are, of course, free to disregard the GRC’s guidance and they have done so before. Nonetheless, the GRC’s Special Statement makes it clear that agencies that are open for business, even if working remotely, cannot simply ignore OPRA requests and must act reasonably to try to respond to them. It may be reasonable to request a extension for records that exist only in paper copy or that are locked away in storage somewhere, but some agencies are taking lengthy extensions even for electronic records that are easily retrievable.

For information about this article or public records issues, contact CJ Griffin at cgriffin@pashmanstein.com or 201-488-8200.

 

 

Lawsuit Challenges Essex County Prosecutor’s Refusal to Disclose Police Videos and Name of Newark Officer Who Fatally Shot Fleeing Motorist


Last week, CJ Griffin filed an OPRA lawsuit on behalf of Richard Rivera against the Essex County Prosecutor’s Office (ECPO) relating to its refusal to disclose the name of a Newark police officer who shot at a fleeing vehicle during a pursuit in January 2019, killing the driver and injuring the passenger. The lawsuit also seeks access to footage from police body-worn cameras and dash cameras.

ECPO denied the request because it is “concerned” that the officer may refuse to testify before the grand jury if his or her name is publicly disclosed. Mr. Rivera’s lawsuit argues that this is not a lawful basis for denying access to the information and videos and that transparency is important when police-involved shootings occur.

In 2017, we won an appeal in the New Jersey Supreme Court on a similar issue in North Jersey Media Group v. Township of Lyndhurst, 229 N.J. 541 (2017). In Lyndhurst, the Supreme Court ruled that the public was entitled to learn the identities of the police officers involved in fatal shootings and see videos of those incidents “shortly after the incident,” after investigators “have interviewed the principal witnesses who observed the shooting and are willing to speak to law enforcement.” The Court stated that disclosure should ordinarily occur “within days of an incident, well before a grand jury presentation or possible trial.” In coming to such conclusions, the Court stated that the public has a significant interest in knowing the details about police-involved shootings and that non-disclosure of such information can undermine confidence in law enforcement.

As we previously wrote, in February 2018, the Attorney General issued Law Enforcement Directive 2018-1 to codify the Supreme Court’s decision.  The Directive states that videos of police-involved shootings should be released when the “initial investigation” is “substantially complete,” which means that the principal witnesses have been interviewed and the evidence has been gathered. This should “typically will occur within 20 days of the incident itself.” Only in extraordinary circumstances could a video be withheld longer than 20 days.

In this case, the police-involved shooting occurred on January 28, 2019 and ECPO still refuses to release the officer’s identity or the police videos more than three months later.

NJ Advance Media has written an article about the lawsuit, which provides more details about the underlying shooting incident. A hearing date has not yet been set by the court.

*Photo by Matt Popovich on Unsplash

Court: Carteret Mayor’s Facebook Page is Subject to OPRA

In September 2018, we filed a lawsuit on behalf of long-time client Steven Wronko seeking the list of users that Carteret Mayor Daniel J. Reiman has banned from his Facebook page.

Carteret opposed the lawsuit, arguing that Mayor Reiman’s Facebook page was simply a personal page and that he has constitutional right to ban members of the public and a privacy interest in keeping the ban list secret.

We responded and provided over 200 pages of screenshots from the Mayor’s Facebook page which showed that Mayor Reiman used his Facebook page to declare weather emergencies and keep the public informed during severe weather events; to talk about redevelopment projects happening in the Borough; and to discuss personnel issues, such as the suspension of a police officer. We also showed that residents frequently posted on the Page about issues they were having with government services and Mayor Reiman or “staff” would respond to those inquiries and try to resolve the issues. Our brief is available here.

On January 11, 2019, the Honorable Alberto Rivas, A.J.S.C., heard oral arguments and found that Mayor Reiman’s Facebook page is subject to OPRA because it is used to conduct the Mayor’s official business. He adopted the fact-sensitive analysis used by Judge Mizdol in Larkin v. Glen Rock, a similar case we won last year.

Judge Rivas ordered Carteret to produce the ban list and to pay Mr. Wronko’s legal fees. A copy of the Order is here.

 

Pashman Stein’s OPRA Cases Make News

Several of Pashman Stein’s OPRA cases have been covered extensively by the press lately. Here is a rundown of the coverage.

McClimate v. Cumberland County

The Daily Journal has covered McClimate v. Cumberland County, a case where Pashman Stein has filed a suit on behalf of a retired county employee who seeks records pertaining to her insurance coverage.  Despite repeated requests that the county provide the actual cost sheet that Horizon Blue Cross gave the county, the county instead insisted on providing only a summary chart that it created.  Ms. McClimate seeks the actual cost breakdown from Horizon so that she can determine whether the County is charging her the proper premium.

Paff v. Bayonne

The Jersey Journal recently covered Paff v. City of Bayonne, a case where Pashman Stein represented open government proponent John Paff in a quest for records pertaining to two settlement agreements.  Mr. Paff sought the agreements, or, in the event the agreements were not finalized, correspondence related to the settlement.  Bayonne denied the request, saying any such correspondence would be exempt pursuant to the attorney-client privilege.  After Mr. Paff filed his suit and argued that correspondence between adversaries is not privileged, Bayonne admitted that it should have stated that no such correspondence even existed.  Bayonne settled the case by admitting its error and paying Mr. Paff’s attorneys’ fees.

Gilleran v. Township of Bloomfield

Patricia Gilleran’s security camera case continues to get news coverage.  Pashman Stein secured a victory for Ms. Gilleran in the trial court and in the Appellate Division, where both courts held that Ms. Gilleran was entitled to security footage from a camera outside Bloomfield’s municipal building.  The case is now pending in the Supreme Court.  Debbie Gallant wrote an article for the Society of Professional Journalists, detailing Ms. Gilleran’s case and the quest to obtain security camera footage from Bloomfield.   Bloomfield Life, Baristanet, and Essex News Daily have also recently covered Ms. Gilleran’s case.

Paff v. Moorestown

Numerous newspapers, including the Philadelphia Inquirer, are covering John Paff’s OPRA lawsuit against the Moorestown Township.  Mr. Paff filed suit to obtain minutes from an October 2012 meeting of the Moorestown Ethical Standards Board.  After Mr. Paff filed suit and argued that public access to minutes cannot be delayed for more than three years and that the agency should release the unapproved minutes, the Board rushed to convene a meeting to approve the 2012 minutes and then released them to Mr. Paff.

DeSanctis v. Borough of Belmar

More Monmouth Musings is covering a lawsuit Pashman Stein filed on behalf of Joy DeSanctis, who is seeking e-mail correspondence between Belmar officials and FEMA regarding Superstorm Sandy funds and the building of the pavilions.  Belmar refused to search for e-mail correspondence, insisting that DeSanctis needed to tell her the exact names of the Belmar officials or FEMA officials who were communicating with each other.  Ms. DeSanctis argues that she has no way of knowing such information, but that Belmar certainly knows and that her request is valid pursuant to Burke v. Brandes, 429 N.J. Super. 169 (2012).

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

Are Facebook Posts and Other Computer Records Subject to OPRA?

Update: We have written extensively about this topic since this blog was published in 2015  and have filed successful suits for Facebook records. For updated content, click here, here, and here.

As the number of public agencies with a social media presence grows, questions arise regarding whether the content of the social media sites is a “government record” subject to OPRA.  We believe that it is.

OPRA defines government records very broadly and includes “information stored or maintained electronically.”  This should cover posts made on a public agency’s official Facebook page, as well as information such as web browser history on computers used by public employees during their official course of business. Computers are, in other words, electronically storing everything a public employee does during the course of his or her day and that activity creates government records – be it posting on a Facebook page or entering data into budgeting software.  At least one court has held that “metadata” is subject to OPRA.

The difficulty, however, is how to gain access to such information.  Though all government records should be retained and public agencies should go through the proper process for disposing such records, employees tend to treat data with less care than hard copy records.  So, electronic records are often deleted and may not always be retrievable from the server.

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