Tag Archives: open public records

Body Cams are Rarely Released on Time

Update as of 10/23/2020:  As mentioned below, we filed OPRA requests on September 26, 2020 for videos that had not been released.  On October 6, 2020, the State said it did not have body cam or dash cam footage of the shooting of Luan Agolli. However, it released some surveillance camera videos here. On October 7, 2020, the State identified the man who died in Totowa on June 27th as Sergio Rodgiguez. As of today, it has not released any videos and said such videos might be produced by October 28, 2020 (which will be 123 days from the incident).

______________________________

In New Jersey, the Attorney General’s Office is required to investigate “[w]henever a person’s death occurs during an encounter with a police officer . . . or while the decedent was in custody.” N.J.S.A. 52:17B-107. In light of that requirement, the Attorney General issued Law Enforcement Directive No. 2019-4, which outlines procedures for selecting the appropriate Independent Investigator and conducting a proper investigation for these fatal incidents. The Directive also requires the disclosure of videos of these incidents, but we find that the transparency measures are not closely followed.

According to Directive No. 2019-4, the “Independent Investigator must release the . . . Incident Footage within 20 days of the . . . Incident, unless the Attorney General, or designee, authorizes a delayed release.” This blog previously discussed a prior iteration of this Directive, highlighting how the 20-day disclosure requirement actually slowed down the access provided by the Supreme Court in North Jersey Media Group v. Township of Lyndhurst, 229 N.J. 541 (2017), which held that videos should be released “within days of an incident.” Now it appears that even the 20-day disclosure requirement is being consistently ignored.

Based on data collected from the Attorney General’s website, there have been 12 incidents since January 1, 2020 that the Attorney General’s office has investigated. Nine of these incidents were shootings and three were in-custody deaths:

 

 

 

 

 

It appears that the fastest time that any videos of these deadly incidents were released was 16 days. Those videos related to Maurice Gordon, who was shot and killed by an officer on the Garden State Parkway on May 23, 2020. Gordon’s death received significant media attention and activists demanded that the videos be released.

As detailed in the chart above, it appears that the Attorney General’s Office has complied with the 20-day disclosure requirement only a single time this year. Sometimes, investigators have taken more than double the time allotted by Directive No. 2019-4, with three incidents taking 44 days, 48 days, and 50 days. In the case of a man who died after a physical altercation with Trenton police, videos were not released for 153 days.

There are three incidents (two of which are in-custody deaths with unidentified decedents) where it does not appear that videos have been officially released. Working alongside our longtime client, Richard Rivera, we filed requests for these videos on September 26, 2020.

The Attorney General has repeatedly spoken out in favor of transparency, arguing that New Jersey should become national leaders on the issue. Ensuring that his office complies with his own Directives would be a good place to start.

For questions or comments about this article or about OPRA in general, please contact CJ Griffin at cgriffin@pashmanstein.com or 201-488-8200.

Sunshine Week: Jennifer A. Borg, Esq.

We close Sunshine Week by featuring Jennifer A. Borg, Esq.

Ms. Borg is General Counsel and Vice President of North Jersey Media Group, publisher of The Record.  She is a recognized authority in First Amendment and open governance matters, particularly as they affect newspapers, and has recently served as Chair of the New Jersey Press Association.  She also has litigated numerous OPRA lawsuits with successful results.  Ms. Borg was featured in the ABA Journal (July 2014) for her expertise in OPRA and public records access issues.  Pashman Stein regularly serves as co-counsel with North Jersey Media Group on complex OPRA cases, several of which are presently on appeal before the Appellate Division.

Interview with Jennifer A. Borg, Esq:

  1. How many OPRA requests do North Jersey Media Group’s reporters submit each month? How many result in violations and/or litigation?

I have no way of knowing exactly how many requests are filed for any given time-period.  North Jersey Media Group has over 100 reporters and very few requests actually make it to my desk.  Usually, I am only contacted when a request is denied, although I do encourage reporters to allow me to help them draft the request.  Requests that are too broad or unclear are often denied so I like to work with reporters to make sure the  request is valid and specific.

I would estimate that we file 6-12 OPRA lawsuits a year.

  1. What are the most common OPRA violations that you see?

The most common violations are not providing a privilege log or Vaughn index with the denial.  Too often, an agency will just deny a request outright without listing the specific documents being withheld or explaining the reasons why each document is being withheld.

  1. Do you think OPRA and OPMA are working well?

I think OPRA is an improvement over the former Right to Know Law.  But, I agree with Senator Weinberg that amendments are greatly needed.  OPRA has been in effect for over a dozen years so we have had time to evaluate where it can be strengthened.  I have less experience with the Open Public Meetings Act (“OPMA”), but I find that it too is missing important language clarifying its terms.  For instance, agencies need to be more specific when giving reasons for going into closed session. “Personnel” and “litigation” do not suffice.    Because OPMA does not provide for attorneys’ fees to the prevailing party, many people don’t take significant violations to court. It’s simply too expensive for most people to pay a lawyer to litigate these claims.

  1. If you could persuade the Legislature to take steps to improve government transparency, what would be your top suggestions?

OPMA needs to provide for attorneys’ fees so that members of the public have lawyers willing to take their cases to court.  Without attorneys’ fees, the practical effect is that agencies can violate the statute without consequence.  There are many changes I would like to see made to OPRA.  For starters, I think the statute should make it clear that courts, and not just the GRC, can impose penalties against those who knowingly and willfully violate the statute and that requestors be allowed limited discovery to prove that an official engaged in such conduct.   It makes no sense that a public official can flagrantly violate the law and not be held accountable for his or her misconduct.  Custodians are required to perform an adequate search for records but too often judges do not allow a requestor limited discovery into whether the custodian’s search was proper and adequate.     Without looking under the hood, how can we hold officials accountable when they knowingly violate the law?   It is crucial for the public to be able to verify that a custodian or other official properly performed his or her job duties when responding to an OPRA request.

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

Public Employees Cannot Escape OPRA by Using Personal Email Accounts

News broke this week that Hillary Rodham Clinton exclusively used her personal email account to conduct government business while she was Secretary of State.  Unfortunately, this practice occurs quite frequently at the local levels of government and it has the potential to undermine government transparency, as it allows public officials to conduct public business behind closed doors. New Jersey’s Open Public Records Act (“OPRA”) is broad enough, however, to require such emails to be produced.

OPRA defines a “government record” as any document (including electronically stored information, such as email) “that has been made, maintained or kept on file” in the course of a public official or public employee’s “official business.”  This means that the right to access an email via OPRA is based on the content and nature of an email itself, not the specific account from which the email was sent. In other words, if a public employee sends an email in which public business is discussed then that email is subject to OPRA regardless of whether it was sent from the public employee’s official business account or from a personal account such as Gmail or Yahoo.

There are complications, of course, which is why public agencies should adopt policies that require all public business to be conducted via the agency’s official business accounts. When an OPRA request is submitted for emails, a Records Custodian can easily ask the IT Department to search the public agency’s server to find responsive emails—even those that have been deleted from the employee’s inbox.  It is much more difficult, however, to gain access to personal email accounts and the Records Custodian generally must rely upon the employee to search his or her own personal email account and produce all responsive emails.  At worst, this opens the door for potential corruption because the Records Custodian has no control over what was produced. At best, it is probable that not all responsive emails will be produced simply because the public employee likely deleted emails from the personal account over time and they are generally recoverable on a private server like they are on the public agency’s official email server.

When making an OPRA request, ask for emails from both the official government account and any personal email account so that the Records Custodian knows that both must be searched.  When you receive a response, clarify with the Records Custodian that any personal accounts were also searched.

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