Tag Archives: public records

NJ Supreme Court grants certification in OPRA case regarding identity of State Trooper who engaged in “racially offensive” behavior

The New Jersey Supreme Court has granted an OPRA requestor’s Petition for Certification and agreed to hear an appeal in Libertarians for Transparent Government v. New Jersey State Police.

The question the Court certified is:

“Does section ten of the Open Public Records Act, N.J.S.A. 47:1A-10, require disclosure of the name of a state trooper listed in the Office of Professional Standard’s annual report to the Legislature as having been terminated for misconduct?”

For background, N.J.S.A. 47:1A-10 states that personnel records are generally exempt under OPRA, but provides three exceptions to the exemption. At issue in this case is the first exception, which states 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”

Each year, the Office of Professional Standards of the New Jersey State Police issues a public report detailing major discipline that is imposed upon State Troopers.  The 2015 report disclosed the following:

Member pled guilty to acting in an unofficial capacity to the discredit of the Division while off-duty by having questionable associations, engaging in racially offensive behavior and publicly discussing police patrol procedures. The member was required to forfeit all accrued time and separate from employment with the Division.

Upon reviewing that report, the requestor filed an OPRA request asking for the Trooper’s name, title, date of separation and the reason therefor, pursuant to N.J.S.A. 47:1A-10. The State Police denied the request, arguing that it was exempt pursuant to N.J.S.A. 47:1A-10 and the Attorney General’s Internal Affairs Policies & Procedures.

Pashman Stein Walder Hayden partner CJ Griffin sued on behalf of the requestor and argued that “date of separation and the reason therefor” meant that the public is entitled to know the real reason a particular employee separated from employment. In this case, the State Police gave the reason, but would not provide the name or date of separation, frustrating the statute’s purpose. Clearly, the public has a significant interest in knowing the identity of a Trooper who engaged in “racially offensive behavior.” Moreover, the the phrase “required to . . . separate from employment” makes it unclear whether the Trooper was fired or whether he or she was permitted to retire in good standing and move on to another law enforcement position.

Griffin argued that disclosure of the Trooper’s name was required pursuant to the New Jersey Supreme Court’s decision in South Jersey Publishing Co. v. New Jersey Expressway Authority, 124 N.J. 478 (1991), a unanimous opinion written by retired Supreme Court Justice Gary S. Stein. In that case, it was widely rumored that the agency’s executive director was under scrutiny for misusing government credit cards.  The agency met in executive session and discussed its investigation into the matter, then worked out an agreement by which the executive director would “resign in good standing” and receive payment of his salary and fringe benefits for nearly a year after his “resignation.” OPRA did not exist at the time, but Executive Order No. 11 (EO 11) contained language essentially identical to N.J.S.A. 47:1A-10 and required disclosure of an employee’s “date of separation from government service and the reason therefor.”  Applying that provision of EO 11, the Court found it was insufficient for the agency to simply tell the public that there was a “resignation” or “voluntary separation,” but rather that it must disclose “the results of the [agency’s] investigation.”  The Court recognized that disclosure of such information was necessary so that the public could intelligently make an evaluation of whether the agency acted reasonably in permitting the executive director to resign in good standing with several months of salary and benefits.

Unfortunately, in this case, the trial court and Appellate Division both affirmed the State Police’s denial of access. Neither court addressed the New Jersey Supreme Court’s decision in South Jersey Publishing. The Supreme Court will now hear the requestor’s appeal.

The successful Petition for Certification can be found here. Amicus curiae briefs are due on December 26, 2019.

NY Times: Newspapers Should Litigate Public Records Suits

The New York Times published an great article yesterday, titled “How The Times Uses FOIA to Obtain Information The Public Has A Right To Know.” The article explains why the Times firmly believes that challenging an agency’s response to a public records request is important to transparency.

Key quote:

Although smaller newspapers usually do not have in-house counsel to litigate public records lawsuits, in New Jersey OPRA provides a fee-shifting mechanism to make it possible for to find competent counsel who will litigate denials on a contingency basis. Newspapers, journalists, and other media entities can take advantage of this fee-shifting provision to challenge denials of access without incurring any costs at all. As the Times notes, doing so greatly benefits the public and is an important part of the journalistic process.

P.S.  Remember – you only have 45 days to challenge a denial.

For more information, contact CJ Griffin.

 

Third Circuit Issues Important OPRA Decision on Legal Fees

According to N.J.S.A. 47:1A-6, a records requestor who prevails in any proceeding shall be entitled to an award of reasonable attorneys’ fees. We have written about OPRA’s fee-shifting provision before, noting that without the fee-shift most requestors would not have the funds to challenge denials of access. As a result, the state would be far less transparent.

On August 14, 2019, the United States Court of Appeals for the Third Circuit issued an important published opinion relating to OPRA’s mandatory fee-shifting provision.

The case, titled Golden v. New Jersey Institute for Technology, involved OPRA requests filed by Pulitzer Prize-winning journalist Daniel Golden, who was seeking records from NJIT to use as research for his book, “Spy Schools: How the CIA, FBI, and Foreign Intelligence Secretly Exploit America’s Universities.” Many of the responsive records in NJIT’s files originated from the FBI and were purportedly subject to prohibitions on public dissemination.

The records custodian reached out to the FBI to determine how to respond to the request and the FBI directed NJIT to withhold most of the records “[i]n no uncertain terms.” NJIT thus denied the OPRA requests by claiming the records were exempt.  Golden sued.

After the lawsuit was filed and removed to federal court, the FBI reviewed the previously withheld records and NJIT produced thousands of pages of documents that it had formerly deemed to be exempt. Golden moved for attorney’s fees, arguing that he was a prevailing party because his lawsuit was the “catalyst” for NJIT’s release of records that were not exempt. The District Court denied the fee motion and was “persuaded by NJIT’s position that it had acted reasonably in following the FBI’s direction.”

The Third Circuit disagreed and all but stated, “If a public agency permits a third party–even if it’s the FBI–to dictate its OPRA response, then that public agency will be on the hook for attorneys’ fees if it turns out that the denial of access was unlawful.” The court made it clear that it is the custodian who has the obligation “to parse the requested records, decide whether exemptions appl[y], and withhold documents pursuant to those exemptions” and that obligation cannot be outsourced to a third party outside the agency.

Importantly, the Third Circuit flatly rejected the argument that OPRA’s fee-shifting provision contains any “reasonableness” requirement. State courts have reached the same conclusion based on the plain language of OPRA, but public agencies still make this argument to trial courts.

This decision is important because there are often times where issues of first impression are litigated and the agency was operating under good faith when it denied a request, but nonetheless was wrong as a matter of law. In such situations, the OPRA requestor is still entitled to an award of attorneys’ fees. Indeed, OPRA contains a mandatory fee-shifting provision so that requestors can find competent counsel to litigate those types of cases.

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

“The Legal Implications of Governmental Social Media Use”

Pashman Stein Walder Hayden partner CJ Griffin has published an article in the April 2019 issue of New Jersey Lawyer magazine, titled “The Legal Implications of Governmental Social Media Use.” A full copy of the article can be viewed here:

Imposing Personal Penalties Upon Those Who Knowingly Violate OPRA

Today, The Record published a story about the Borough of Wallington’s decision to suspend its Borough Clerk and file tenure charges against him with the state Department of Community Affairs. According to The Record, the Clerk is charged with “serious deficiencies,” including failing to comply with OPRA’s statutory time frames “43 times in 2018 and 36 times in 2017.”

PSWH Partner CJ Griffin is quoted in the article and discusses the potential liability both a public agency and its records custodian (or other employees) could face for violating OPRA.

Most OPRA cases involve an “ordinary” denial of access that occurred for one reason or the other. It may be that the records custodian or person responding to the OPRA request applied the law incorrectly or that the law was unclear as to whether a record is exempt or not. A records requestor has a right to challenge such a denial and if the court agrees that the response was unlawful, the remedy is that the court will order the record to be released and require the public agency to pay the requestor’s reasonable attorneys’ fees. No public employee personally pays these attorneys’ fees, even if they were the ones who came to the wrong conclusion to withhold a government record from public access.

Beyond the “ordinary” OPRA case, a requestor can seek personal penalties against the records custodian or person responding to the OPRA request. Pursuant to N.J.S.A. 47:1A-11(a):

“[a] public official, officer, employee or custodian who knowingly and willfully violates [OPRA] . . . and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty of $1,000 for an initial violation, $2,500 for a second violation that occurs within 10 years of an initial violation, and $5,000 for a third violation that occurs within 10 years of an initial violation.”

The fine is imposed upon the public official, officer, employee or custodian personally and the agency does not pay this fine.

What constitutes a knowing and willful violation of OPRA? There is not a lot of case law on this, but it is clear that in order for the denial to be considered willful the person responding to the request must have actual knowledge that their actions are unlawful.

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.

 

Vendor Activity Reports: A Helpful Tool for Tracking Spending

Many people want to know how they can monitor an agency’s spending and determine how much an agency is paying a certain vendor (such as a law firm, plumber, construction company, or insurance company) or even who the agency’s vendors are. A “Vendor Activity Report” (or “Vendor History Report”) is a very helpful tool for learning this information.

A Vendor Activity/History Report details all payments made to every individual or company that was entered into the agency’s accounting software in order to receive a payment. If a bill is paid, then there is a corresponding “vendor” entry in the accounting software.  The Vendor Activity/History Report will list all of the vendors and the total amount of money they were paid during the requested time frame. Once you obtain the report and see something that interests you, then you can you can request the corresponding payment vouchers and bills/invoices for that vendor to further investigate the spending. Requestors have used the Vendor Activity/History Report to identify large reimbursements to the agency’s employees, for example.

Here are a couple examples of Vendor Activity Reports from NJ towns that we found on the Internet, so you can see what they look like and how helpful they can be:

Egg Harbor Township’s Vendor Activity Report, located here, lists all vendors for the designated time frame (2015). This type of report is helpful because you can see the total payments made to every single vendor contained in the agency’s accounting software during a specified time period. If you do not know anything about an agency’s finances or which vendors they use, you can ask for the full vendor activity report and learn who the vendors are and how much they were paid. To request this type of report, one would simply say: “Pursuant to OPRA and the common law right of access, I seek the vendor activity or vendor history report for all vendors by vendor name for payments made January 1, 2018 to present date.”

Eagleswood Township’s Vendor Activity Reports, located here on this OPRA Machine request,  provide a breakdown of all payments to an identified vendor during the specified time frame. This type of report is helpful when you know about a vendor already and just want to see how much they were paid during a specific time period. In these reports, the requestor sought the activity report for three specific vendors (newspapers). The reports show all of the payments made to those vendors. To request this type of report, one would simply say: “Pursuant to OPRA and the common law right of access, I seek the vendor activity or vendor history report for all payments made to [Insert Name of Vendor/Company] for January 1, 2018 to present date.”

If you have any questions about this topic, please feel free to contact CJ Griffin at cgriffin@pashmanstein.com

You Only Have 45 Days to Sue for an OPRA Violation

Perhaps the most important thing to remember about OPRA is that there is a very, very short statute of limitations period. This means that if you receive a denial, you need to act very quickly or you may lose your rights to gain access to the record you seek.

What do you do if you receive a denial from an agency or if the agency unlawfully redacts information from government records?

The best course of action is to immediately speak to an attorney, who can work with you to gain access to the records. This frequently requires a lawsuit filed in Superior Court.  Again, the most important thing to remember is that your action must be filed within the statute of limitations, which is only 45 calendar days. The process for filing in Superior Court is as follows:

  • You will sign a retainer agreement with an attorney, who will likely agree to represent you on a fee-shifting basis (meaning, there will be no charge to you–the agency will pay the fees if and when you prevail)
  • A Verified Complaint and Order to Show Cause is filed. These will be drafted by the requestor’s attorney, though the requestor must sign the complaint to verify it is accurate.
  • The judge will review and sign the order, which sets for a briefing schedule and a hearing date.
  • The pleadings are then served upon the public agency and they will submit an opposition brief. Sometimes, an agency may opt to release the records and settle the attorney fee amount rather than proceed with the litigation.
  • The requestor’s attorney has an opportunity to file a reply brief.
  • A hearing is held, wherein the judge will hear arguments from both sides. For simple cases, the judge will usually enter a ruling that day. More complex cases may require a little more time for an opinion to issue. The requestor need not be present for the hearing.
  • If the requestor is declared a prevailing party, the Court will order the agency to pay the requestor’s attorney fees.

Again, the most important thing to remember is that there is a very short timeline for filing the initial Verified Complaint – 45 days from the date your request was denied.

For more information about this blog post and challenging a denial of access, please contact cgriffin@pashmanstein.com.

Lawsuit Seeks Settlement/Separation Agreement For Corrections Officer

NJ Advance Media has written about the recent lawsuit we filed on behalf of Libertarians for Transparent Government seeking a settlement/separation agreement between Cumberland County and a corrections officer who allegedly had inappropriate relationships with inmates. The lawsuit also asks the Court to find that Cumberland County violated OPRA when it told Plaintiff that the corrections officer was “terminated for disciplinary reasons,” when the Pension Board’s meeting minutes state that he was allowed to “retire in good standing.”

PSWH partner CJ Griffin is quoted in the article:

Attorney CJ Griffin, representing the plaintiff, argued that the county has provided a distorted view of Ellis’ case.

“By indicating that Ellis had been terminated for a disciplinary infraction, it leads the public to believe that Ellis paid a price for his admitted misconduct,” the suit states, “In reality, according to the pension board’s minutes, Cumberland County instead allowed him to ‘retire in good standing.'”

The South Jersey Times also published an editorial on the case, arguing that settlement agreements with employees should never be confidential.

For more information on the lawsuit and to review the pleadings, visit John Paff’s “NJ Open Government Notes” blog.

For questions about OPRA, contact CJ Griffin at cgriffin@pashmanstein.com.