Tag Archives: opra

Yes, You May “OPRA an OPRA Request”

For years, individuals have filed OPRA requests with agencies to obtain all of the OPRA requests an agency has received during a specific timeframe.  Requestors use these records in a variety of ways, such as a) finding out how many OPRA requests an agency is handling during any specific timeframe (since agencies have no obligation to calculate that information and let the public know); b) being able to contact another member of the public who is interested in the same type of government issues; c) learning more about government by seeing what other requestors are seeking from their government.

While local governments have generally continued to comply with such requests, unfortunately in 2014 the State began denying all requests for OPRA requests (perhaps not coincidentally, when the requests began to ask for other requests about the Bridgegate scandal).  The trial court ruled against the State, but the matters were stayed.  Accordingly, since 2014, requestors have not been able to obtain copies of OPRA requests that were filed with any State agency.

Recently, however, the Appellate Division issued a published opinion and rejected the State’s appeal.  In Scheeler v. Office of the Governor, __ N.J. Super. __ (2017), the Appellate Division held that there is no blanket exemption that permits an agency to deny access to all OPRA requests that were filed with the agency.  While the Court noted that there may be circumstances where a single OPRA request might invoke a confidentiality concern (such as containing trade secrets), overwhelmingly that will not be the case.

The Court also re-affirmed its prior holdings and concluded that a request for all OPRA requests filed during a specific timeframe was valid and did not require “research.”

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

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.

New Jersey Supreme Court Accepts Security Camera Case

The New Jersey Supreme Court has granted the Township of Bloomfield’s Motion for Leave to appeal in Gilleran v. Twp. of Bloomfield, 440 N.J. Super. 490 (App. Div. 2015, making the Appellate Division’s decision subject to the Court’s review.

In this case, Ms. Gilleran initially filed an OPRA request for a week’s worth of video footage from a security camera at the rear of the Municipal Building. She sought the footage to confirm whether certain politically connected individuals were visiting the municipal complex, as was rumored.  The camera is in plain sight and sits above the mayor’s parking spot.  At the Township’s request, Ms. Gilleran narrowed her request to a single day of footage.   The Township denied the request, stating it was exempt pursuant to a provision of OPRA that “emergency or security information or procedures for any building or facility which, if disclosed, would jeopardize security of the building or facility or persons therein’ is exempt from disclosure.” Ms. Gilleran sued to gain access to the video footage.

In opposing Ms. Gilleran’s suit, the Township essentially argued that the security-related exemption was a blanket exemption.  No one from the Township watched the tape, but it argued that the footage “could” contain images of victims reporting crimes to the police station next door, confidential informants, or others reporting crimes.  The trial court ruled that the exemption was not a blanket exemption and that without watching any of the tape, the Township could not meet its burden of proof.  The Appellate Division affirmed in a published opinion and agreed that the exemption was not a blanket exemption.  The appellate panel held:

With respect to the particular camera in this case and information contained on its recordings, Administrator Ehrenburg’s certification was not sufficiently specific to establish a risk to the safety of any person or property or jeopardy to the security measures taken for the building. Bloomfield provided no specific information from police officials stating that the identity of informants, crime victims, or confidential witnesses would in fact be revealed and specifying what kinds of activities occurred outside the police station during the period of recordings that Gilleran requested. It provided no information by the persons responsible for installing or operating the security camera to indicate that important security strategies or techniques would be disclosed. For example, there was no indication that the security camera might have blind spots in its apparent surveillance area, or that the clarity and sharpness of the imagery recorded would be revealed in a way that might compromise the strategic deterrent effect of the security camera or overall security system of the building. The Administrator’s “conclusory and general allegations of exemptions,” see Newark Morning Ledger, supra, 423 N.J. Super. at 162, were insufficient to justify withholding the recordings from disclosure.

[Gilleran v. Twp. of Bloomfield, supra, 440 N.J. Super. at 498)]

Defendants filed a motion for leave to appeal to the Supreme Court.  In accepting the case, the Supreme Court’s website presents the question as: “Does the Open Public Records Act require the Township to disclose video recordings from a security camera surveilling the back of the Township’s municipal building (i.e., Town Hall)?”

Organizations who wish to file amicus curiae briefs have until January 20, 2015 to file their motions for leave to appear and accompanying briefs, pursuant to Rule 1:13-9.

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

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.

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.

Sunshine Week: Harry Scheeler

Continuing with our Sunshine Week theme, today’s blog focuses on Harry Scheeler.  Recently, CJ Griffin of Pashman Stein secured a victory on Mr. Scheeler’s behalf against the Office of the Governor, which had denied access to RSVP lists for those attending Governor Christie’s Town Halls.

Interview with Harry Scheeler:

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

I first became interested in open government as a teenager. In the early 1990s the police department in my hometown was given cell phones for the purpose of calling judges for restraining orders and warrants. Over time you could see officers parked in their cars talking on the phone. When I requested copies of the bills they revealed many personal calls being made. At the time, the calls were billed per minute based on peak and off peak. The exposure of these bills in the court of public opinion put a stop to the abuse. The experience proved to me how powerful public oversight is.

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

My main interest is testing the willingness of the government to turn over records to the public. When they don’t, I use litigation to enforce the law and compel compliance.

  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 estimate I file about 100 requests per year. Of those requests there is a 50/50 chance there will be a violation. I attempt to correct the violation with the custodian but most of the time I am met with a bureaucratic attitude which leads to litigation quickly. I would estimate I average 20 lawsuits per year, most of which are filed with the GRC.

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

I would ask for two things. First, mandatory fines for custodians who repeat a violation. Second, I would have the GRC randomly audit an agency’s compliance with OPRA to identify issues. Currently it appears custodians end up being trained by way of litigation started by activists such as myself.

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

Sunshine Week: A Win in Helmetta for the Wronkos

It’s Sunshine Week– a national initiative to promote a dialogue about the importance of open government and freedom of information.  This week on the blog we will feature some of Pashman Stein’s clients who are open government activists or journalists and highlight some proposed changes to the New Jersey Open Public Records Act (OPRA) that are currently pending in the Legislature.

Today we feature Collene Wronko, an open government and animal rights activist from Middlesex County.  Ms. Wronko and her husband, Steve, have led a group of dedicated activists who have used OPRA to shine light on the abusive conditions at the Helmetta Regional Animal Shelter.  Not all of the records were easily obtained, however, and the Wronkos hired CJ Griffin last fall to file a suit on their behalf.  Last week, Superior Court Assignment Judge Travis L. Francis issued a decision finding Helmetta in violation of OPRA on numerous counts and compelled them to remove redactions from hundreds of animal intake records and release numerous other records that it had unlawfully withheld.

Interview with Collene Wronko:

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

I initially became interested in the Open Public Records Act, when I was trying to prove that there was abuse at the Helmetta Regional Animal Shelter.   I was able to use the Open Public Records Act (OPRA) to get records that would show how incompetently the shelter was run, but the Borough itself made it very difficult to get the records.  My requests were repeatedly denied or I was given negligent responses that did not contain all of the records I had requested.  Ultimately, OPRA helped me get the word out so that the shelter situation was featured on Kane in Your Corner and the New Jersey Society for the Prevention of Cruelty to Animals (NJSPCA) raided the shelter, took it into receivership, and filed animal cruelty charges against its directors.

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

I am most interested in records surrounding Municipal Shelters, NJSPCA, and misconduct of police officers in small towns, as well as how council are running small towns and if they are running them with a transparent government or a back door government.

  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?

In 2014, I filed approximately 125 requests.  I would say at least 100 of those requests had some sort of violation within the response.  Most we handled with a quick note from me or my attorney, but there approximately a dozen or so that we had to sue on.  The case against the Borough of Helmetta was quite large and included numerous violations, but there were dozens and dozens more by them that we did not include in the lawsuit for various reasons.

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

The one thing I would like to see changed are Internal Affairs investigation reports for all types of police.  I do not believe keeping these public records safeguarded from the general public is “transparency”.  If anything, we should want to know what the police officers are doing that would cause citizens to file complaints and to see if those complaints are repetitive.  Right now, it is very difficult to get those records.

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.

May I Request Public Employee’s emails?

Many clients ask whether the emails sent to or from a public employee or public official are subject to the Open Public Records Act (OPRA).  The answer is yes – if the email would be considered a “government record,” if it had been sent via snail mail or some other method of correspondence, then it is subject to OPRA. Even if the public officials or employees are using a personal email address or their personal computer, the emails are subject to OPRA if they are discussing the public agency’s official business.  When making a request, we therefore recommend that you seek both emails, from both the public employee’s official work email address as well as their private email address.

Though there is very little guidance from the courts on this issue, the GRC has held that a valid request for emails requires the following:

  • Date range. Note that the range must not be overbroad—requests for months or years of emails may very likely be held to be too broad.
  • Subject matter. We recommend stating the subject matter and indicating that you wish the custodian to search both the subject line and the content of the emails.
  • Identity of the Sender or Recipient. You do not need to know both the sender and the recipient.

An example of a request likely to be found valid is:  “Copies of all emails to or from Mayor Jones (using his official township email address or his personal email address) from August 1 to August 15, 2014 regarding the Fourth of July Parade (please search both the subject line and body of the email).”

Until a New Jersey court rules differently, we recommend putting all three of the above items in a request for emails.

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

Can I Request Attorney Bills?

Some public agencies routinely deny access to invoices for attorney services, claiming that such bills contain information protected by the attorney-client privilege.  OPRA, however, specifically mandates that these bills must be made available in response to an OPRA request.  The public bills may, however, “be redacted to remove any information protected by the attorney-client privilege.”

Recently, a public agency attempted to charge a requestor an hourly rate for its attorney’s time to review the legal bills and redact them for privileged information. The public agency required the requestor to pay for three hours of time at $150 per an hour.  The requestor filed suit and the court agreed with the requestor that such a charge was unlawful.  If the public agency needed counsel to review its responsive records, the court held that the public agency was required to bear that cost and not shift it to the requestor.

In addition to requesting the legal bills, it is common practice to also request the engagement/retainer letter and the resolution passed by the public body to approve the contract. This allows the requestor to verify that the rates being charged are authorized by the contract.

If you encounter a problem gaining access to legal invoices, it is imperative that you speak to an OPRA attorney immediately.  Lawsuits for wrongful denials of access to records must be filed within 45 days of the denial.

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