[ back ]
Two municipalities fighting lawsuit
(by Karen F. Mrnarevic - April 29, 2008)
Mary Ann Ozment, the municipal clerk of the Township of Washington, was just one of 10 clerks in Bergen County sued in February by Martin O’Shea, an open government advocate and retired newspaper reporter, and his associate, John Paff, for not producing documents that they had requested under the Open Public Records Act (OPRA). But Ozment happens to be one of only two remaining defendants in the case who have refused to settle the suit. She and Norwood Municipal Clerk Lorraine McMackin, and municipal officials of the two towns, have decided that they will fight the lawsuit. Eight other towns, including Emerson, have agreed to pay out about $718 apiece to cover O’Shea’s and Paff’s legal fees.
O’Shea and Paff (the Plaintiffs) have a history of challenging government entities that deny access to government documents or fail to expediently honor OPRA requests. According to the New Jersey Government Records Council (GRC) Web site, the two have filed a combined total of more than 70 complaints to the GRC since 2002. The Plaintiffs filed OPRA requests with the clerks of 70 Bergen County municipalities in October of 2007 for police department Internal Affairs Summary Reports for 2004 through 2006.
The Plaintiffs assert that the records are subject to the accessibility requirements of OPRA, and therefore should have been handed over by each town’s clerk. While 60 municipalities produced the documents promptly, the remaining 10 either did not respond to the request or offered various excuses for why they could or would not supply the records in totality. Ozment received the Plaintiffs’ request via fax, and informed them that they would have to fill out a request in person, since the Township requires an original signature on OPRA request forms.
The Plaintiffs’ suit states that “OPRA specifies that a request for access to a government record may be hand delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian… [and] that any public employee that receives the request for access must forward it to the custodian of the record.” Thus, he claims, Ozment was in violation of OPRA requirements when she refused to honor his request simply because it was faxed.
In its response to the lawsuit, the Township provided the Plaintiffs with the documents, but refused to settle nonetheless. However, according to The Plaintiff’s attorney, Donald M. Doherty, “Now, instead of paying $718 and change, they [the Township] will end up spending [approximately] $8,000” to defend themselves against the suit, “and they will still lose.” Doherty said that he has seen many government officials respond this way to OPRA violation lawsuits. “It’s so aggravating… you’ve got everybody screaming, ‘why are my taxes so high’… and this is the reason.”
In Norwood’s case, said Doherty, the borough clerk was unable to locate the internal affairs summary report for 2004, because it was not kept on file. According to Doherty, this is a major issue from an open government standpoint. “You cannot have a system that condones that,” said Doherty, “because then there will be no government records. It’s so absurd.” However, as Norwood’s Borough Attorney Andrew Fede pointed out, McMackin responded to the Plaintiffs’ request immediately upon receiving it, and sent out all of the records the police department had on file at the time, the summary reports for 2005 and 2006, within 24 hours of the request.
Norwood Police Chief Jeffrey Kraples included a letter with the documents, stating, “Since I became Chief in 2005, the 2004 Internal Affairs Summary Report form cannot be found from the last Chief. If you have any questions, please advise.” The Plaintiffs sent $1.50 to the borough to cover copy fees and did not contact the borough again prior to serving the borough with the suit, almost four months later. In response, Kraples contacted the Bergen County Prosecutor’s office, and obtained a copy of the reports from 2003 and 2004, which had been prepared and filed by the prior chief. The reports were put on file at Norwood’s Borough Hall, and copies were sent to the Plaintiffs.
According to the Plaintiffs’ suit, the borough was required under State Attorney General Guidelines to maintain copies of the reports for at least five years. On the contrary, according to Norwood’s opposition brief, the guidelines to which the Plaintiffs refer in their suit only require police departments to “submit periodic reports to the county prosecutor,” which Norwood’s police department did. The guidelines do not specify that clerk keep the reports on file for any specified period of time. Furthermore, “if the Plaintiffs really wanted to see the Norwood 2004 form, or for that matter any form for any of the other 69 Bergen County Municipalities, they could have obtained copies by filing one OPRA request (not 70) with the Bergen County Prosecutor’s office.”
Fede said that he was actually quite shocked when he learned of the lawsuit, and thought it must have been a mistake. He mentions that if the Plaintiffs had responded to Kraples’ letter and made the borough aware of their intentions to sue, the borough would have obtained and produced the 2004 report; instead, the borough was somewhat blind-sided. Fede said, “It’s a very troubling situation.” He also added that he was unaware that eight other municipalities had already agreed to settle the suit until after he had prepared a brief in opposition to the suit.
Fede stands in strong defense of McMackin and the borough, saying the prompt response to the Plaintiff’s request is an example of how McMackin had no intention to willfully withhold the 2004 report, but that it was not kept on file. “I am confident that we [the Borough of Norwood] are fully responsive to the public,” he said. Fede requests that the court dismiss the suit against McMackin and the borough.
Ozment declined to comment and Kenneth Poller, attorney for the Township of Washington, did not return phone calls.
Karen F. Mrnarevic's e-mail address is Mrnarevic@northjersey.com.
[ back ]
