Refusals to respond to opra requests create a vicious cycle

Recently, I have come to represent Harry Scheeler, operator of the http://www.gallowaytwpnews.com website, which tracks the goings-on in Galloway Township.  Galloway has had a consideration amount of personnel turmoil over the past few months.  Among the scandals were firing the Clerk when she made an OPRA request to the Board of Elections about the engineering contract for the voting district maps and employees getting “comp time” for eating lunch at their desk. Aside from this waste, Galloway stopped answering OPRA requests.  This got people interested in “why” they stopped answering OPRA requests – which then begot even more OPRA requests.  The case I am involved in settled, but this is classic example of how government makes problems for itself. By being unresponsive to a few, even more people began to demand information to find out what is going on.  The government has created more clients for me by treating people poorly than I have ever could have developed on my own.  The Press of Atlantic City wrote about the Scheeler vs. Galloway case:Press of Atlantic City article about Galloway suit published 4-12-12

Even when I Lose, New Jerseyeans Win

A few years back I lost a case, Constantine v. Bass River, 406 N.J. Super. 305 (App. Div. 2009).  It challenged that municipal court discovery fees were excessive (my client paid $20 for 3 pages relating to his speeding ticket).  Both the trial court and the appellate division were sympathetic, but ultimately held it was a matter for the Attorney General’s Office to instruct the municipal prosecutors on a proper cost structure.  It did not.  Finally, the Municipal Court Rules Committee has addressed the issue, relying heavily on the principles discussed in the Constantine decision and the Attorney General’s failure to act (there have been 3 since the case was decided).   The new Court Rule is 3:13-5 and it can viewed, along with the commentary relating to it and the Constantine decision here: New Rule 3:13-5 & Commentary

Now the costs for discovery are in line with the charges allowed under the Open Public Records Act (OPRA).  Glad I was able to help.

Judge Mary C. Jacobson Issues an order to show to the NJDEP

The post below notes that Susan Scoblink-O’Neill filed suit against the New Jersey Department of Environmental Protection for its practice of imposing “special service charges” for the routine (sub-)clerical tasks of removing staples and taking papers out of binders.  The Honorable Mary C. Jacobson in Mercer County has directed the matter to proceed on an expedited basis, with the DEP having to show cause why it practice should not be declared a violation of OPRA (Open Public Records Act). The OSC can be seen here: Signed Order to Show Cause .  Stay tuned for further updates.

If everyone is special, no one is special….the NJ DEP creates an “everyone-is-special-so-everybody-pays” policy

Well, you had to think this was going to happen eventually.  After all those class actions to force the government to charge “actual cost” for records, OPRA was changed to limit the charges to 5 cents per page.  Left in the Open Public Records Act law was the ability to impose a “special service charge” for those requests that involve “an extraordinary expenditure of time and effort“.  Yes, you do know where this is headed.  The NJ DEP has started imposing a “special service charge” on every request for removing staples and putting documents back in binders and files!  My client, Susan Scoblink-O’Neill (defeater of the DVRPC a few posts below) sued after she was given two different estimates for this “special service charge”.  It took between 6 and 9 minutes to address her request and make the 77 copies.  Does that sound like “an extraordinary amount of time and effort“?  The Honorable Mary C. Jacobson has the case, which is venued in Mercer County.  Remember those soccer leagues where “everyone was special” and got a trophy?  Now everyone is “special” – and you get a bill. Scoblink-O’Neill vs. NJ DEP

If New Jersey wasn’t a hard enough a place to retire…

Sky-high property taxes, insurance and (usually) cold weather.  It is not difficult to understand why many people move out of New Jersey when they retire.  Yesterday they just got one more.  In  Cameron v Ewing  the Appellate Division ruled that “reverse mortgages”, increasingly popular with older people looking to tap the equity in their homes while they still live in them, are subject to levy and execution to pay debts.  That means every month when a bank sends the reverse mortgage check, the creditor just takes it – or at least part of.   The saving grace is that Judge Ostrer held it was  subject to limitations like a wage execution. N.J.S.A. 2A:17-56 So instead of losing your house to creditor, you just lose a little bit of it each month.  However, if you  move to Florida (also a popular place to retire I hear), creditors can never reach your home because Florida has a state constitutional provision called the “homestead exemption”.   By the way, I am licensed and practice in New Jersey and Florida.

Bad Foreclosure Notice? New Jersey Supreme Court Does Away With the Automatic “Do Over”

Remember when you played stickball and a car would come around the corner in the middle of a play?  What  happened  when the car made everyone stop?  That’s right, it was a “do over”.   The notice requirement of the Fair Foreclosure Act used to send many a lender back to square one, as a “do over” when they gave out bad information.  Under the Fair Foreclosure Act, a borrower is supposed to be given a notice prior to foreclosure that includes the name and address of the lender and the telephone number of a representative of the lender whom the debtor may contact if the debtor disagrees that a default occurred or contests the payment amount needed to cure the default.  As mortgages came to be repeatedly assigned in the effort to treat them like securities, many people do not even know just who their lender is when they to try and work out a default.  New Jersey  developed a body of law providing that if the notice was defective – missing the name of a lender or person to contact, let’s say – the foreclosure had to be dismissed and started all over again.  The Supreme Court has now ruled that dismissal is not automatic, a bad notice is not a basis to vacate a default and the trial courts must consider how the error affected the borrower when they craft a remedy for the mistake.  The Court’s opinion is here: US Bank v Guillaume .  Note that because the debtors here knew who the lender was and whom to contact because of a prior modification, dismissal was not mandatory, nor was the default vacated.  However, other remedies may be available depending on the circumstances.  Additionally, the opinion does not affect the ability to pursue a Fair Debt Collection Practices Act case for the defective notice; it  only determined a lender does not have to automatically start the foreclosure process all over again if there is another way to solve the problem.

Federal Courts Can Hear Junk Fax Cases – AND That’s the Fax, Jack

The United States Supreme Court  recently decided that “junk fax” cases – cases seeking the $500 statutory penalty under the Telephone Consumer Protection Act – can be heard in federal court on the basis that they pose a “federal question”.  Previously, New Jersey and some other states held interpretations that the peculiar wording in the TCPA statute only allowed the cases to be filed in state courts.  This is a positive turn of events for New Jersey consumers, as some state court judges seemed to have grown particularly hostile to such claims over the past few years.  It seems that it is forgotten that the “junk faxers” use up time, toner and your phone lines, in effect forcing you to bear the burden of their illegal advertisements.  The Supreme Court decision is here: Mims v Arrow Financial   And if you have any questions about a junk fax or your rights as a consumer, please call – do not fax – for a free consultation.  And yes, I know you cannot find my fax number anywhere on the website.

It’s a bird! It’s a plane! It’s a medical record! It’s a personnel record! All wrong – but it is a government record ordered to be turned over to my client.

I recently prevailed in an Open Public Records Act case, O’Boyle v. Department of Treasury.  The client had requested information about how and when a retired government employee already receiving state health benefits was permitted to “opt out” of benefits he would receive as local mayor and instead collect a payment (thus having health benefits while simultaneously getting paid not to take them a second time). This boondoggle is not new, unfortunately.  The New Jersey Treasury Department refused to provide the records, claiming them to be medical information exempt from OPRA.  We filed suit, because only information about money was sought – and after all, the Treasury Department does not even have “medical records”.  After suing, the State changed its position to claim the records to be exempt as “personnel records”.  The crux of this position is one that many OPRA requesters see – the government’s attempt to claim any records relating to employment are exempt personnel records.  Judge Douglas H. Hurd (Mercer County) would have none of it.  The records were ordered to be provided.  The case is still open as the State contests my fee petition.

Shouldn’t You Be Able To Actually Use The Records You Get From The Government?

I argued an appeal this week in one of favorite OPRA cases as of late – Banda v. Bloomfield.  Ms. Banda asked for a tape of meeting.  She was given a tape recorded at ultra-low speed.  When it was played on “normal” consumer audio equipment – stereo, tape player in her car and a boom box -  you could not understand it.  Bloomfield offered to convert it to normal speed for $85 + another tape charge.  And to have it transcribed required a $1000 deposit.  We filed suit under OPRA, asserting that government should provide records in a format consumers would expect to encounter so the records COULD ACTUALLY BE USED.  Bloomfield defended its actions because it wanted to “save on tapes” by fitting more on a tape.  A tape costs less than a $1 AND only needs to legally be kept for 90 days by the way, so it is not like storing them was a big deal.  The trial judge disagreed with us, finding that providing the tapes in the format they were recorded was enough.  The appellate panel of Judges Paulette Sapp Peterson and Mitchel Ostrer seemed poised to reverse.   I expect this to be a relatively quick opinion to issue because the judges  honed right in on the issue as if they were clarifying writing points, not discerning what the issues were.  There was a lot here Bloomfield could have done to make access far easier – new digital equipment is only a few hundred dollars, 90 minute tapes are the same size as the 60 minute tapes used, the record function could have been set to normal speed or the playback machine could have been kept in the library.  For these and other reasons, I predict Bloomfield’s “saving on tapes” rationale will not stand.

OPRA: Is Atlantic City using a “standard form” denial?

Followers of these posts know I file a fair amount of Open Public Records Act cases.  Recently, I filed my first case EVER against Atlantic City.  This seems odd to a lot of people, possibly even the judge that handled the case, because Atlantic City is known for its “creative” political machinations.  Such situations usually result in OPRA cases when the government does not want you to see the records.  My client was not looking into some scandal however; she just sought records relating to the police shooting a deer in the City that had been living peaceful in the other island communities.  Her request for the police report and related records were denied. While my client ultimately received the relevant records, Judge Nelson Johnson spent a fair amount of energy focusing on whether the City was using a “standard form” for OPRA denials.  The City denied it.  Has anyone else received an OPRA denial from Atlantic City worded like this:  Atlantic City OPRA Denial ?  It lacks all specificity required when access is denied and does not even delineate what records they have but are not turning over.  Remember even if you are validly denied access, you still have to be told what records are not being turned over and why.  Many government bodies ignore that requirement.

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