Tag Archives: opra records

Judge rules North Arlington improperly imposed service charge for Facebook records

Last week, Bergen County Assignment Judge Bonnie J. Mizdol issued an opinion finding that the Borough of North Arlington unlawfully imposed a special service charge upon a records requestor who sought records from the Borough’s Facebook pages.

The OPRA request at issue in Wronko v. North Arlington sought the list of individuals who had been banned from the Borough’s Facebook page, as well as a list of any words that had been censored and the list of page administrators. In response, the Borough insisted it needed to use an outside IT consultant to capture the screenshots necessary to fulfill the request, which would cost $200 for 2 hours of time.

OPRA permits a special service charge only in limited circumstances. Specifically, N.J.S.A. 47:1A-5(d) provides that:

If a request is for a record: . . . requiring a substantial amount of manipulation or programming of information technology, the agency may charge, in addition to the actual cost of duplication, a special charge that shall be reasonable and shall be based on the cost for any extensive use of information technology, or for the labor cost of personnel providing the service, that is actually incurred by the agency or attributable to the agency for the programming, clerical, and supervisory assistance required, or both.

Otherwise, “electronic records and non-printed materials shall be provided free of charge.” N.J.S.A. 47:1A-5(b)(1).

After hearing expert testimony from both parties, Judge Mizdol concluded “that production of the requested documents does not require a substantial amount of manipulation of information technology.”  The court found that capturing screenshots of the Facebook pages that contained the list of banned users and censored words “did not require any expertise in the field of information technology” and that any person with a “basic level of computer skills” would be able to fulfill the request by utilizing Facebook’s “Help” pages or a “simple Google search for ‘how to take a screenshot.'”

Importantly, the Court noted that it is imperative that agencies be able to fulfill modern day OPRA requests:

OPRA requests increasingly involve information technology in this digital age. Those hired to serve as an OPRA Records Custodian, thus, must have the requisite skills to reply to requests for government records located on such digital platforms. If a custodian does not have such skills, the municipality has the ability to rely on information technology experts or hire third party help. However, shifting costs related to same [to the requestor] requires the presence of a substantial amount of manipulation on information technology.

Unfortunately, the imposition of special service charges seems to be on the uptick. Many requestors may simply walk away from a request if the agency seeks to impose a significant fee, but it is possible to challenge the fees in court. In this case, Judge Mizdol ordered the agency to release the records without any fee and to pay the requestor’s legal fees.

 

Exception 2 to OPRA’s Personnel Records Exemption

Last week we discussed Exception 1 to OPRA’s personnel records exemption, which permits you to file an OPRA request for a public employee’s “name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record.”  This week, we explore Exception 2.

Exception 2 provides that: “personnel or pension records of any individual shall be accessible when required to be disclosed by another law, when disclosure is essential to the performance of official duties of a person duly authorized by this State or the United States, or when authorized by an individual in interest.”

This Exception has been largely un-litigated and thus the Courts have still not defined the scope of this exception.  In McGee v. Twp. of E. Amwell, 416 N.J. Super. 602, 616, 7 A.3d 785, 793 (App. Div. 2010), the Appellate Division held that emails about an employee were “personnel records” even though they were not filed in a personnel folder and that Exception 2 would permit the employee to request them because she would be an “individual in interest” who could authorize the release.

Regarding the phrase, “personnel or pension records of any individual shall be accessible when required to be disclosed by another law,” we will explore this portion of Exception 2 next week when we explore Exception 3 because the two exceptions work closely together in some instances.

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

What Personnel Records Can I Obtain Under OPRA?

Personnel records are a category of government records that shine significant light on the workings of government (including misconduct and corruption), but unfortunately our Legislature made most personnel records off limits when it enacted OPRA.  So, what records can you get?

Section 10 of OPRA makes personnel and pension records generally off limits, but it provides three exceptions.  Today, we will discuss the first exception.

The first exception provides that:  “an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record.”

This means that basic requests for a paystubs, year-end payroll reports, lists of employees, etc., must be granted.   But, this exception can actually provide very helpful information where an employee separates from government employment on suspicious grounds.

Too often, government employees engage in some sort of alleged wrongdoing, but work out an agreement with the governing body that they will simply resign on good terms rather than be terminated. The public is often left in the dark about the real reason why the person left, but the personnel record’s first exception can prove helpful.

The public is entitled to know an employee’s “date of separation and reason therefor,” which is language that was incorporated into OPRA from Executive Order No. 11 (1974).  Our Supreme Court has interpreted this very phrase to mean something more than just telling the public that an employee “resigned.”  Rather, “reason therefor” means the REAL reason the employee resigned – i.e., because several employees accused him of discrimination and misuse of government property and a resignation was agreed upon in exchanged for those employees not suing.

In South Jersey Publishing Co. Inc. v. New Jersey Expressway Authority, 124 N.J. 478 (1991), newspapers reported that an executive director of the N.J. Expressway Authority was under investigation for misuse of credit cards.  The Authority held a closed session meeting with the executive director to discuss the results of the investigation and to work out an agreement for him to separate from employment.  Ultimately, the Authority agreed that the executive director would be paid his full salary, pension, and health care through the end of the year and that the agreement would remain confidential.   The newspapers sought access to the agreement and the closed session minutes, but the Authority denied access to both.  The New Jersey Supreme Court ruled that the agreement and closed session minutes were accessible, because the “date of separation and reason therefor” included the results of the investigation into misconduct.  The Court rejected the notion that simply informing the public that the executive director had a “voluntary separation” was sufficient and held that “[w]ithout disclosure of the reasons for [the executive director’s] ‘voluntary separation’ from the Authority, the public cannot intelligently make [an evaluation into the reasonableness of the Authority’s agreement with the executive director.]”

Because the Legislature incorporated the “date of separation and reason therefor” directly from Executive Order No. 11, principles of statutory construction inform that the Legislature thus also intended to incorporate case law interpreting and applying Executive Order No. 11.  Thus, South Jersey Publishing Co. is binding and applicable in an OPRA case.

If an employee or public official in your town “resigns” and it seems like something else was going on, we recommend filing an OPRA request seeking closed session minutes, memorandums of understanding or settlement agreements, and the employee’s “date of separation and reason therefor.”

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

 

A Public Agency Must Tell You What Records Exist

Pursuant to Section 5 of OPRA, a public agency must state the “specific basis” for denying access to government records.  Those who request records frequently, however, know that it is not uncommon for a public agency to issue a blanket denial when you’ve requested a volume of records, rather than telling you specifically why each requested record is being withheld.  Yesterday, a court awarded attorneys fees to Pashman Stein in litigation against a public agency who had refused to tell Plaintiff John Paff whether there were records responsive to his request and instead kept making blanket assertions that “any such records” would be exempt as internal affairs records.  You can read more about the decision in Paff v. Township of Stafford on Mr. Paff’s blog.

In making a blanket assertion that any and all records are exempt from access, a public agency not only violates the plain language of Section 5 of OPRA, but also deprives the requestor the ability to determine whether or not he might be entitled to the records under OPRA or the common law right of access.  It also places the requestor in the position of filing suit and then finding out that the records did not even exist in the first place.   In such instances, our courts have still awarded fees to requestors because the public agency’s negligence in not telling the requestor that the record did not exist essentially lured the requestor into litigation.

For example, in Kelley v. Borough of Riverdale, MRS-L-524-14 (Law Div. April 11, 2014) the plaintiff had requested numerous emails that were sent to and from municipal employees, including the custodian regarding litigation.  The custodian responded that plaintiff requested “court records that I cannot and do not have authorization to send you.”  Plaintiff sued.  In opposition to suit, the agency responded that the records, in fact, did not exist and that “as there are no documents to be ‘disclosed,’ this matter should be dismissed.”  The trial court still found an OPRA violation and awarded the plaintiff attorney fees, stating that had the agency not been negligent in giving the requestor an incorrect response to his OPRA request he would not have sued.

Paff v. Stafford and Kelley v. Borough of Riverdale are just two examples of a court finding an OPRA violation for a public agency’s negligence in failing to properly respond to an OPRA request.  This negligence not only deprives an OPRA requestor of the ability to access whether the denial of access was lawful, but also ultimately results in an expenditure of taxpayer funds when the requestor sues.

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