Tag Archives: non profits and opra

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.

Business Improvement Districts Must Designate Records Custodians

Over the past few years, New Jersey courts have expanded the definition of “public agency” under the Open Public Records Act (“OPRA”) so that it covers more than what is traditionally thought to be a government agency (i.e. municipalities and state agencies).  Through a series of cases, our courts have made it clear that non-profit corporations can be subject to OPRA if they serve as an “instrumentality” of a public agency.

Last week, the Hon. Judge Peter E. Doyne held that the Rutherford Downtown Partnership (“RDP”), a non-profit organization that manages the Borough of Rutherford’s Business Improvement District, is subject to OPRA.  Most importantly, Judge Doyne’s decision addresses what steps such a non-profit organization must do in order to comply with OPRA.

Plaintiff Patricia Gilleran submitted a records request to RDP. After receiving no response within seven business days, CJ Griffin of Pashman Stein filed litigation on her behalf.  In opposition to Plaintiff’s litigation, the RDP claimed it sent Plaintiff an email notifying her that it does not handle OPRA requests, that she must contact the Borough of Rutherford, that it would not forward her email to the Borough, and that she should not respond. Plaintiff certified that she never received this email.

Judge Doyne found that RDP’s alleged email was insufficient. He held that OPRA required the RDP to designate a records custodian and to forward Ms. Gilleran’s request to the custodian or to tell her specifically who the custodian is, rather than simply directing her to the Borough.

Records requestors should take away several things from this decision. First, the simple fact that an entity is non-profit organization does not mean it is not subject to OPRA. To determine whether the non-profit might be considered subject to OPRA, requestors should consider whether the mayor or town council appoints the organization’s board members; whether the non-profit’s budget consists heavily of “public funds;” whether the non-profit was created by local ordinance or state statute; and, the level of control a public agency exerts over the non-profit.

Second, when making an OPRA request to a non-profit organization, be aware that the non-profit must either forward your request to its custodian or specifically tell you the name of the custodian.  If you do not receive a response within seven business days, it is imperative that you immediately contact an attorney to assist you in obtaining the records as the law allows only 45 calendar days from the date of denial to file a lawsuit in Superior Court.

For more information about this blog post, please contact cgriffin@pashmanstein.com.