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A bee in the boro's bonnet
(by Karen F. Mrnarevic - April 23, 2008)
On Tuesday, April 15, the Emerson Council passed a resolution to settle a lawsuit filed against Municipal Clerk Carol Dray by Martin O’Shea, a retired newspaper reporter and self-proclaimed public advocate and champion of open-government.
In February, O’Shea filed a lawsuit against Dray and the municipal clerks of nine other
Bergen
County towns, after they failed to produce documents that he claimed should be available to the public under the Open Public Records Act (OPRA). Dray, as the custodian of government records for the borough, was responsible for providing O’Shea with the records, which were Police Department Internal Affairs Summary Reports for the years 2004 through 2006. O’Shea had also requested, and received, the same records from 60 other
Bergen
County municipalities.
The resolution, which falsely identifies O’Shea as an attorney with Friedman Doherty LLC, the firm representing him, was passed as part of the council’s consent agenda. It makes various claims about the plaintiff’s motives in filing the suit. While it ends with the an authorization for the borough to pay $718.28 for the proportional share of O’Shea’s attorney’s fees and litigation expenses, its language is sometimes accusatory, asserting the borough’s clear stance on the issue: that the clerk has a right to withhold records in certain cases, and that O’Shea was only after money.
Despite the council’s decision to settle, the official stance of the borough is that Dray was in the right to withhold the records O’Shea requested. The resolution passed by the council calls the requested document an “esoteric police internal affairs record,” which was “not maintained and did not exist in the Emerson Police Department in the form supplied by the requestor.” The resolution goes on to state that “after diligent legal analysis [Dray] concluded that in fact, any such police personnel record would be exempt pursuant to OPRA.”
Furthermore, according to the resolution, “all the records would be readily available from one central agency, the State of New Jersey Attorney General’s Office.”
O’Shea’s lawyer, Donald M. Doherty, Jr., Esquire, of Friedman Doherty, LLC in
West Berlin , calls this claim both irrelevant and false. O’Shea’s suit asserted that under Attorney General Guidelines, “Administrative Internal Affairs records must be maintained [by a municipality] for at least five years.” If a clerk cannot produce the report immediately available upon request, or if the report is not maintained in the format requested, “OPRA generally requires the custodian to fulfill the request, even if imperfectly.”
Borough officials still believe that Dray took appropriate action in refusing to supply O’Shea with the report. However, it was determined that in order to prevent a protracted legal battle, and the expense of even more tax-payers’ money, settling would be the best decision. “In good conscience,” said Borough Attorney Philip Boggia, “we couldn’t justify spending the money to defend the borough against this lawsuit… You can’t spend taxpayers’ money to fight an absurd circumstance.”
According to Boggia, borough officials believe that the lawsuit is “a clear example of abusing the Open Public Records Act.” He stated that while he believes in OPRA as an important means by which the public can be given access to municipal information, in his opinion, O’Shea’s motivation is questionable. “He [O’Shea] is suggesting he’s doing this to protect the public, but it sounds more like a money-maker to me,” said Boggia.
That seems to be the prevailing opinion throughout the borough leadership. In fact, a statement appears in the council’s resolution that, “it was learned that Martin O’Shea had requested the obtuse record… for the purpose of entrapment and [as a] money making scheme under the guise as a public advocate for government transparency.”
But according to Doherty, this accusation is totally false. “Martin O’Shea doesn’t make anything,” Doherty said. “All he gets is the record.” Doherty emphasized that the money that Emerson will be giving up in the settlement is merely a portion of legal fees which was split up among the eight municipalities who have agreed to settle the suit.
Doherty also pointed out that there will not be any civil penalties assessed against Dray or any of the other municipal clerks named in the suit, even though state law (NJSA 47:1A-11) states that civil penalties may be assessed in the amount of $1,000 for a first offense of denying access to public records. “They [the Emerson Council] can say whatever they like in their resolution,” said Doherty, “that doesn’t make it true.”
Karen F. Mrnarevic's e-mail address is Mrnarevic@northjersey.com.
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