(For information on what types of records to request from police departments, see my prior post on the issue:  http://www.njfog.org/how-do-i-get-police-records/)

This is not an indictment of the police.  I think the problem is that police departments are complicated, quasi-military organizations that do not receive the proper training in OPRA.  Also, while OPRA places the responsibility for responding to OPRA requests squarely on municipal clerks who almost always receive OPRA training in the form of seminars, it is often the case that the responsibility for responding to OPRA requests for police records is handled by a civilian employed within the police department or a police officer who do not receive similar training.

Most requests for police records usually implicate either the “ongoing investigation” exception or “criminal investigatory records” exception.  Since the “ongoing investigation” exception was discussed thoroughly in my How Do I Get Police Records post, I am going to focus on the “criminal investigatory records” exception.

I frequently encounter denials of access from police records custodians that cite the “criminal investigatory records” exception.  This exception is frequently misunderstood, because it is actually quite narrow.  The criminal investigatory records exception does not make all criminal investigatory records exempt from OPRA.  Rather, this exception only covers criminal investigatory records that the police are not required by law to make, maintain or keep on file.  In other words, if you’ve asked for a record that the police have discretion regarding whether or not they must keep it on file, that is not a public record.  If the police must keep the document on file, then it is a public record.

How do we know whether the police must make, maintain or keep a record on file?  While that’s currently being decided on a case-by-case basis, I can say for sure that Courts have accepted that the retention schedules of the New Jersey Division of Archives and Records Management are laws that require police to keep records on file.  So are the New Jersey Attorney General Guidelines.  So, if you’re being denied access to police records on the basis of the “criminal investigatory records” exception, look up the New Jersey Division of Archives and Records Management retention schedule for municipal police departments, which is here: http://www.nj.gov/treasury/revenue/rms/pdf/m900000.pdf

If the type of record you’re looking for is listed on that schedule, it is not a “criminal investigatory record.”

Note!  The Courts and the Government Records Council have not decided this issue consistently.  If you must challenge a denial of records, you should probably do so in Superior Court, not the GRC.  Remember, such a lawsuit must be brought within 45 days after the denial.

http://www.northjersey.com/news/opinions/luers_102112.html?page=all

As some of you know from reading this blog or experience, the Government Records Council handles OPRA complaints.  The GRC procedure has several advantages.  There are no filing fees; communication via the GRC can be done by email or fax; the GRC does not have complicated procedural rules; and there is no time limit to filing a complaint.

But there are also drawbacks.

According to the GRC’s website, which I checked just before writing this post, has seven staff members.  One is the Acting Executive Director, one is descriobed as a ”secretary”, one is a “communications manager/information specialist,” one is a mediator, and the remaining three are case managers.

According to the GRC’s website, from 2005 to 2010, the GRC received an average of 282 complaints each year, which amounts to about 94 complaints per year, per case manager.  That strikes me as a heavy caseload.

Thus, it shold come as no surprise that it takes the GRC between six to 18 months to decide cases, and many of the cases I’ve filed are closer to the 18 month range.  Eighteen months is way too long.  These cases are not complex commercial transactions.  They must be resolved quickly.

I tried to think of another institution that succesfully handles lots of similar claims quickly and efficiently.  The Special Civil Part of Superior Court immediately came to mind.  The Special Civil Part handles lawsuits valued at $15,000 or less (this includes small claims court cases).

The process in Special Civil is very simple and relatively expediated.  The filing fee is, in general, less than $60.  A docket number is assigned quickly, and a response must be filed, usually in about 35 days.  Parties have the option to request discovery, but many parties don’t.  A trial date is scheduled quickly, usually in 1-3 months.  On the day of trial, all parties are required to go to mediation.  The mediators are volunteer lawyers who are trained in mediation.  In mediation is where most cases are settled, so that the Court doesn’t have to get involved.  For the few cases that go to trial, the trials tend to be short, less than a day.

While it might take some work in the beginning, I think the GRC should consider transforming itself from its current model, in which case managers produce 10-20 page opinions that contain thorough recitations of the facts and the law, to a system that gets the parties in front of a mediator or decision-maker faster, and gets the issues resolved faster and more efficiently.

First, how emails are requested is important.  Every request for emails should (we’ll discuss why I say “should” instead of “must” in a moment) identify (1) the sender or recipient; (2) a date range; and (3) a subject matter.  So, a valid OPRA request for emails would go something like:  “All emails from the Mayor to any member of the Borough Council regarding the Main Street Redevelopment Project that were sent between January 1, 2012 and February 15, 2012.”  This example identifies a sender, sets a reasonable date range and identifies a subject matter.  You can also add search terms, such as:  “All emails from the Mayor to any member of the Borough Council regarding the Main Street Redevelopment Project or containing the words ‘redevelopment’ that were sent between January 1, 2012 and February 15, 2012.”  Notice also that I said “from the Mayor”.  Technically, emails from the Borough Council to the Mayor would not be captured by my sample OPRA request, so you could add “to or from”.

So, why did I use “should” instead of “must”?  The criteria I set forth above is the Government Records Council’s definition of a proper OPRA request for emails.  If your OPRA request meets the criteria set forth above, the GRC will probably enforce your OPRA request.

However, as faithful readers of this blog know, the GRC is not the only place where a person can enforce their OPRA rights.  The other forum is Superior Court.  At this time, there are no published Superior Court cases that address specifically what constitutes a valid request for email addresses.  In my experience, I have successfully compelled disclosure of public agency emails when the request only specified a sender or recipient and a date range – no subject matter.  Such a result can depend on the individual Superior Court judge who hears your case.

Second, the public agency may object to the scope of your OPRA request.  One common objection is that your OPRA request requires the records custodian to conduct “research,” not “search” for a document.  But if you’ve identified the three elements we discussed above, the Records Custodian has to conduct a “search” for emails.  You’re not asking for “research” if you’ve specifically identified the sender or recipient, subject matter and date range.

Third, the public agency may demand a special service charge for copies of the documents.  A special service charge is warranted if fulfillment of your OPRA request would require an extraordinary amount of time or effort or special expertise (such as a computer specialist).  One way to get avoid this roadblock is to narrow your OPRA request.  Did you request six months of emails?  Narrow it to two months.  Did you request all emails between the Mayor and Council?  Narrow it down to all emails between two individuals.

Fourth, some of the emails you requested may be privileged, perhaps because they contain material that is advisory, deliberative or consultative.  That means that emails that discuss an issue before a decision has been made about that issue are not, in general, subject to public disclosure.  (Of course, if such a discussion is happening at the Mayor/Council level, query whether such discussions should be taking place in private in the first place).  Sometimes, public agencies want you to pay for legal review of these records for privilege by outside counsel who are paid hundreds of dollars per hour.  At this time, both the Government Records Council and the Superior Court have held that the requestor does not have to pay for attorney review for privilege.

Finally, it doesn’t matter if public officials use their personal email accounts or personal computers to conduct public business.  Such use of private email is NOT a bar to access.  If the Mayor uses his or her personal email to conduct public business, then those emails are subject to OPRA.

If you think you’ve been improperly denied access to emails, contact the Government Records Council, NJFOG (info@njfog.org) or the author directly (wluers@njfog.org).

First, it is important to know how to make a request.  For records that are held by the New Jersey State Police, those requests should be made through New Jersey’s centralized request portal, here:  https://www16.state.nj.us/NJ_OPRA/department.jsp.  The “department” is Law and Public Safety, and the “division” is “Division of State Police.”  For records that are held by the County police, you should make your request to the County Clerk or the designated OPRA Records Custodian.  (Remember, if you transmit your request to the wrong person, they are obligated to either forward your request to the correct person or tell you who the correct person is).

Municipal police departments deserve special mention.  OPRA specifically designates the Muncipal Clerk as the “Records Custodian” for municipal agencies.  Therefore, your request should always be directed towards that person.  However, some municipalities have created seperate OPRA forms specifically for their own police departments and have designated specific civilians or police officers within a department to handle OPRA requests.  While these forms and designations do not relieve the Municipal Clerk of the legal obligation to fulfill your OPRA request, if you can readily identify the person within the police department who has been designated to handle OPRA requests for police records, send your OPRA request directly to that person because that will probably save you some time.

Second, we frequently see cases where the police deny access to records because of an “investigation in progress.”  However, police cannot deny access to records simply because they relate to an investigation in progress.  If any of the records requested were created and were available prior to the investigation, then they are still disclosable, even if they are currently contained within an investigatory file or even if disclosure would be inimical to the public interest.  The common example would be a call to 911 to report a crime.  At the time of the call, there was no investigation.  Therefore, access to the recording cannot be denied because the recording is part of an “investigation in progress.”  (Of course, other exceptions may apply to prevent disclosure, but those reasons must be articulated by the Records Custodian).

Certain information must be disclosed by the police, even if it is part of an investigation.  According to OPRA, the following information must be disclosed within 24 hours or as soon as practical after a request:

• where a crime has been reported but no arrest yet made, information as to the type of crime, time, location and type of weapon, if any;
•  if an arrest has been made, information as to the name, address and age of any victims unless there has not been sufficient opportunity for notification of next of kin of any victims of injury and/or death to any such victim or where the release of the names of any victim would be contrary to existing law or Court Rule (identity of victim can be withheld under certain additional circumstances);
• if an arrest has been made, information as to the defendant’s name, age, residence, occupation, marital status and similar background information and, the identity of the complaining party unless the release of such information is contrary to existing law or Court Rule; and
• the charges, investigating and arresting personnel and agency, information about bail, and information regarding the immediate circumstance of the arrest.

Why are these exceptions important?  They are important because many types of police reports contain portions of information that must be disclosed.  Thus, while an appropriate response to a request for police records might involve some redactions, the entire document normally should not be withheld.

There are many types of police records that the public should be interested in, including:

• Use of Force Reports.  These document every time force is used on a subject.
• Incident Reports.  These are usually created when the police respond to a call.
• 911 Calls.  Remember, sometimes these calls are received by the municipal police department, but often they are received by a call center that is run by the County.
• Mobile to mobile text messages.  The police text each other while they work, too.  Those messages are subject to OPRA.
• Audio and video recordings, including car-mounted video cameras on patrol cars.
• GPS data.
• Salary and overtime data.
• Surveillance video from a video camera whose existence is in the open.

In my experience, police who are in charge of responding to OPRA requests are in a tough position.  Unlike clerks, they tend to have little or no training in responding to OPRA requests, and they tend to be overly restrictive in their response.  It sometimes takes a degree of persistence to get records from police departments.

An individual can represent themselves before the GRC or they can be represented by an attorney.  The public agency is almost always represented by an attorney.

Filing a complaint with the GRC is easy an free; its forms are available on its website, and they can be filled out and emailed, faxed or mailed to the GRC for filing.  Once a complaint is filed with the GRC, it is assigned a case number and a case manager.

If the person who filed the complaint consented to mediation, then the Records Custodian is asked whether they want to consent to mediation.  If both parties consent to mediation, then the case is assigned to one of the GRC’s mediators.  A telephone mediation conference will usually be held within 1-3 months; if the matter doesn’t settle by the end of the three months, the matter will usually be referred back to the GRC for formal resolution.

If at least one side does not consent to mediation, or if the matter is referred back from mediation, the GRC will issue a request for a “Statement of Information” (“SOI”) from the Records Custodian.  The requests are generally sent out between five and thirty days after a case number is assigned or after the matter comes back from mediation.  The Records Custodian is given five business days to complete the “SOI”, although extensions of up to 10-20 days may be sought or granted.

The GRC’s rules do not explicitly permit additional unsolicited filings once the initial Complaint and Statement of Information have been filed.  However, the GRC will not reject additional filings by the person who filed the complaint if they provide information about new developments or if they are rebutting new issues raised by the Records Custodian.  (Don’t simply repeat what you’ve said before).  If you make such a supplemental filing, the Records Custodian will probably respond.  Such submissions should be made quickly.

Once the Complaint and SOI have been filed, the GRC will review the case to determine if OPRA has been violated.  This can take 12-18 months.

Once that review is complete, several events may happen:

1. If the GRC is satisfied that it has all the facts it needs to make a decision, it will issue an interim or final order at a regularly scheduled meeting of the GRC.
2. If the GRC thinks it needs more information from one or the other parties, it will request additional information.
3. If the GRC thinks the privacy interests of a person are implicated by the documents being requested, the GRC will conduct a balancing test and will ask the parties specific questions to determine their interests in disclosure or non-disclosure.

If the GRC does number 2 or number 3, after it receives the info, it will then probably make a decision as discussed in 1 above.

GRC decisions come in three flavors:  (1) administrative dispositions; (2) interim decision and orders; and (3) final decision.

An administrative disposition means that the GRC was able to decide the case on a technicality or on consent without issuing a full-blown decision.  Examples include: (1) the complainant did not file a proper OPRA request; (2) the complainant alleges a violation of some law other than OPRA; or (3) the case was settled in mediation or the complaint was withdrawn.

An interim decision and order is when the GRC requires the Records Custodian to do something, such as (1) produce copies of documents to the Complainant; or (2) produce copies of documents to the GRC for in camera review.  In general, an interim decision and order is a “win” for the Complainant, especially if the GRC orders disclosure of documents to the complainant.

If an interim decision and order is issued, the GRC will usually require compliance within 5 business days, which can be extended another 5-10 business days.

In cases where the GRC performs an in camera review, the GRC will then determine what portions of the documents, if any, should be disclosed to the complainant.  This will be in the form of a future interim decision and order.

In cases where the GRC orders disclosure of records, the GRC will determine whether the records have been disclosed.

In cases where the GRC believes a knowing and willful violation of OPRA may have potentially occurred, the GRC will refer the issue to the Office of Administrative Law (“OAL”) for a hearing.  Also, in cases where the complainant is represented by an attorney, the GRC will refer the issue of prevailing party attorneys fees to the OAL.  Finally, if there are disputed issues of facts, the GRC will refer the case to the OAL for a fact-finding.

OAL proceedings can take 3-12 months, depending on several factors, including how busy the individual judge is who is assigned to the case and how aggressively the case is managed by the judge.  OAL judges issue decisions in 30-60 days.

The OAL judge must make an “initial decision” on any issue referred to him or her by the GRC.  Once the OAL judge issues their decision, the GRC has 45 days to accept it, modify it or reject it and replace it with its own decision.  The GRC usually accepts the OAL judges’ decisions.

A final decision occurs when all issues within the jurisdiction of the GRC have been resolved.

Under the Open Public Meetings Act (“OPMA”), meeting minutes for all municipal meetings must be drafted and approved “promptly.”  In this State, Courts have interpreted that to mean that the meeting minutes must be drafted and approved by the next regularly scheduled meeting or within 30 days.

This is not a new problem for Rockaway Township.  In August 2011, Rockaway Township was sued under OPMA because it had not drafted or approved executive session meeting minutes for 21 of the 24 executive session meetings that the Borough Council held between January 2009 and May 17, 2011.  Draft meeting minutes had been prepared for three of those meetings, but only one set of the three had been approved.  This allowed the Township Council, for all practical purposes, act in near total secrecy through their executive session meetings.  That lawsuit resulted in a court order requiring Rockaway Township to draft and approve meeting minutes for all executive sessions held during that time period.

Some municipal clerks or attorneys may suggest that such delays are necessary because the minutes are confidential.  However, here it is important to distinguish between approval of minutes and their disclosure.  Minutes of all meetings (including closed or executive session meetings) must be drafted and approved within 30 days after the meeting.  However, portions of the minutes may be redacted if permitted by law.

To put it simply, under OPMA, all minutes must be promptly drafted and approved; however, those portions that may be confidential should be redacted when they are disclosed.

(Disclosure:  The author has, both currently and in the past, represented individuals in litigation against Rockaway Township, including in the lawsuit mentioned in this blog entry.)

Speakers include: Walter Luers, Esq. (Attorney and President of NJFOG), John Paff (Chairman of NJ Libertarian Party’s Open Government Advocacy Project), Tom McLeod Esq. (ACLU-NJ), Ian Shore (Former Municipal Clerk), and Krystal Knapp (Journalist).

The cost to attend the event is $15 online or $20 at the door. Students with valid student ID will receive a reduced ticket price of only $3.

The event will be held on Saturday, September 22nd from 9:30am to 3:30pm at the Raritan Valley Community College located at 118 Lamington Road, Branchburg, New Jersey 08876.

This event has limited seating. Please reserve your seat online by clicking here.

The New Jersey court system allows the public to search for civil cases, but only if either the docket number or a party’s name is known. For example, if you already know that Kelly Morgan filed a ‘whistle-blower’ (i.e. a Conscientious Employee Protection Act [CEPA] ) case against the Pleasantville Board of Education, you can go the state courts’ web site, search on Morgan’s name and learn that the case’s docket number is ATL-L-006652-10 and other information about the case.

But what if you didn’t know a party’s name or docket number?

Suppose, instead, that you wanted a list of all ‘whistle blower’ cases filed in a given county during a given year?

This type of information is not available from the court system unless someone pays the State hundreds of dollars in programming fees to have a custom report prepared.

Fortunately, New Jersey Foundation for Open Government (NJFOG), as a public service, recently paid the court system $710.00 to obtain two (2) custom reports containing docket information on civil cases filed from January 1, 2002 to May 14, 2012. After obtaining these electronic records, we
combined them, removed the duplicates, and converted them into a fixed-width text file that contains basic docket information on over 260,000 Superior Court Law Division Civil cases.

That text file can be downloaded for free here. (Download the small “README.TXT” file first to understand what other files to download.)

By using basic text editing and sorting software (i.e EditPlus and CMSort), you can learn things like the number of whistleblower cases filed in Atlantic County in 2011 – there were 24 of them – and see that the cities of Atlantic City and Pleasantville and the Township of Galloway were named as defendants in some of them.

To learn more about any specific case, you can search the docket number on the State’s site. For example, you’ll learn that Koltouris Konstadinos’ whistleblower case against Galloway (Docket ATL-L-002795-11) settled in mediation on April 3, 2012.

While this information is very useful, it is not complete. Unfortunately, the court system periodically “archives” some of its cases, and when a case is archived, it is removed from the reports that we paid for and obtained.

In order to get data from the archived cases, we would need to purchase a “PAC0502” report for an additional $1,325. The PAC0502 report, while prohibitively expensive, would also be difficult to manipulate into useable data. According to a March 14, 2012 e-mail from Elisabeth Ann Strom, Esq., Chief of the Superior Court Clerk’s Office (Voice: 609-292-5293 – e-mail):

The [PAC0502] report is not available for paper copies due to its immense size (one year’s worth could be at least one million pages), nor can this report be sorted by date range or docket
order. This report is sorted by archive date. Also, this report contains all different types of docket cases intermingled together. In addition, because this database is for archived cases, it could contain multiple copies of the same case if it had been re-opened, closed and archived again within the same year.

We have been also informed that this report is only an electronic docket, containing only enough data in the archive database to re-establish a case if necessary. It does not contain the entire caseload of information for each case.

So, in sum, the file that we’ve provided is a nearly complete listing for recent cases (e.g. only 59 of the 93,759 cases filed in 2011 have been archived) but as the cases get older, there is a greater chance of them being archived and not available in the file we’ve provided.

In conclusion, we hope that this information will help journalists and the general public to better identify and track court cases that are of interest. We also believe that NJFOG’s experience in gathering this information illustrates how antiquated, expensive and user-unfriendly New
Jersey’s civil case database is. Compare New Jersey’s system to the federal court’s Pacer system. While it has its flaws, the Pacer system allows account holders to search court records in a variety of ways and to actually download PDF versions of court filings (for a modest cost per page).