photo of Skip Huisking Glen Rock Councilman -2016-2018, courtesy of his “official” Facebook page
June 17,2018
the staff of the Ridgewood bog
Glen Rock NJ, looks like Ridgewood is not the only town that has issues with social media and OPRA , a Glen Rock resident named Timothy Larkin claimed he was “banned” from participating in a public dialogue on Councilman Skip Huisking’s Facebook page, which Huisking called an “official” page of Huisking’s, where the councilman conducts official government business.
On April 10, Larkin filed a lawsuit against the Borough of Glen Rock, and Borough Clerk Jackie Scalia, for denying an Open Public Records Act (OPRA) request for access to the list of Facebook accounts blocked or removed by Glen Rock mayor Bruce Packer and all members of the Borough Council. The suit is focusing on the public Facebook pages maintained by the mayor and council members, and not their personal Facebook pages.
The lawsuits focus seems to focus on if the “official” Facebook page is in fact “official ” Glen Rock Business .
Skip Huisking Glen Rock Councilman -2016-2018 commented on his “official” Facebook page on June 15th :
“Social Media Lawsuit: As many have been following, it was heard today (6/15/18) with the judge rendering an opinion. As with most cases, there are pluses and minuses.
I can, and will, continue to administer my page as I have in the past. Namely requiring standards of civility by insisting two things (both were on my page and part of the court documents submitted);
“First, always be respectful with comments- no personal attacks against anyone or group”.
“Second, should you comment and I respond, please do not delete my responses or your original comment. Playing this ‘dirty delete’ game is against my policy of openness and transparency. I look forward to your contributions should you decide to make them.”
The Judge did require we provide the names of those blocked if requested – which I will clearly provide the list of 3 accounts blocked (As I offered in late April to settle) for not following those standards
For further detail, the opinion will be posted on the appropriate court site. I am glad the judge rendered the opinion today so we can focus on the many issues facing our Borough.”
Ridgewood NJ, An Appellate Court ruled today that the right to request records under the state’s Open Public Records Act (OPRA) is not limited to New Jersey residents. The ruling upheld a lower court opinion in Burlington County and reversed lower courts in Cape May and Atlantic Counties. The three cases were consolidated for the purpose of the Appellate Court’s review.
“We conclude that the reference to “citizens” — found in N.J.S.A. 47:1A-1 and nowhere else in OPRA — expresses the Legislature’s general intent to make New Jersey government records open to the public, rather than expressing an intent to limit access to only New Jersey residents or domiciliaries. Because the more specific provisions of OPRA refer to “any person,” and because OPRA is to be construed broadly to achieve the Legislature’s over-arching goal of making public records freely available, we conclude that the right to request records under OPRA is not limited to “citizens” of New Jersey.”
Today’s Appellate Court ruling has statewide application. See NJFOG’s website here for background.
Glen Rock NJ, A Glen Rock resident has filed suit against the borough for denying a records request, and in so doing, has brought to the forefront the continuing legal debate about whether elected officials’ social media accounts constitute a government property to New Jersey Superior Court.
https://www.northjersey.com/story/news/bergen/glen-rock/2018/04/19/glen-rock-nj-officials-facebook-pages-public-documents-says-suit/528481002/
Glen Rock Mayor Bruce Packer had this is say on his Facebook pages :
April 21 at 9:05pm ·
I cannot comment on ongoing litigation but I want to make it clear that when OPRA (Open Public Records Act) requests are made, elected officials play NO part in whether or not they are granted. As the Borough Clerk is in possession of those records that fall under the rules, it is the Borough Clerk who makes such decisions, at times with the help of the Borough Attorney.
There are times where there are questions as to what constitutes a government record and unfortunately I cannot comment any further.
You can find lots of info about OPRA here:
*Part 2 on OPRA requests*
When a Borough Clerk is not in possession of an item that is requested, it is not possible for the clerk to provide that record. That does not inherently imply that the record is not subject to OPRA but, for example, if governing body members have Facebook pages on their personal email accounts, it is not possible for a Borough Clerk to access them and provide information.
While I cannot talk in detail about the current lawsuit regarding OPRA and Facebook accounts, our Borough Clerk has no access to our accounts and the heart of the issue is whether or not she should.
In short, are the unseen parts of governing body members’ Facebook pages, such as admin settings, block lists, etc, government records? No court has ever made a determination to date on this and the information has never been provided based on my own informal conversations with other municipalities.
In Part 3, I will share an email that I received from the NJ Government Records Council last October.
*Part 3 on OPRA requests*
I believe in full transparency and open access to all records as appropriate. There is a line that protects the privacy of governing body members though and there are times when that line is not clear.
After an OPRA request was received for information relating to a Facebook page last year, I wrote to the state authority on such matters, the NJ Government Records Council (https://www.state.nj.us/grc/). As this is uncharted territory, I wanted to gather all of the facts.
Here is the response to my query and the last paragraph responds to my specific question:
Thank you for contacting the NJ Government Records Council (“GRC”). The information provided by the GRC is guidance and does not constitute legal advice or a final decision of the GRC regarding whether a particular record is exempt from disclosure or not since the provisions of the Open Public Records Act (“OPRA”) are applied to the specific facts of the request and/or complaint. The GRC cannot tell you exactly how to respond to an official OPRA records request because your response must depend on the specific facts of the records request.
Generally, OPRA provides that “. . . government records shall be readily accessible for inspection, copying, or examination . . . with certain exceptions . . .” N.J.S.A. 47:1A-1. There are 25 specific exemptions from disclosure included in OPRA.
Additionally, OPRA defines a government record as a record “made, maintained or kept on file . . . or that has been received in the course of . . . official business . . .” N.J.S.A. 47:1A-1.1. Also, OPRA requires a custodian to grant or deny access as soon as possible but no later than seven (7) business days from receipt of the request. N.J.S.A. 47:1A-5(i). OPRA further requires that custodians inform requestors of the lawful basis for any denial of government records. N.J.S.A. 47:1A-6.
Regarding your inquiry, the GRC has no prior decisions regarding social media and OPRA. Additionally, the current state of the law doesn’t specifically contemplate the disclosability of social media posts. It’s an awfully tricky situation given the interactive nature of social media. At some point, these types of issues will need to be decided either through new legislation, court decisions or Council adjudications.
In the mid-1970s, the Open Public Meetings Act created the basis for government transparency in the state of New Jersey. A little more than 15 years later, the Open Public Records Act followed, replacing the nascent “Right-to-Know Law.”
Since then, the laws have seen few face-lifts, and the wrinkles are beginning to show.
“We want to bring the bills into the 21st century,” said state Sen. Loretta Weinberg, D-Teaneck, “some parts of which were written before there was such a thing as an Internet.”
Ridgewood NJ, At their June 29 meeting, the Senate Budget and Appropriations Committee amended and released without recommendation, S-1045, which amends the Open Public Meetings Act, and S-1046, which amends the Open Public Records Act. The bills now await consideration by the full Senate, although we do not expect a vote until after the November election. The Assembly companion legislation is referenced to the Assembly Judiciary Committee and has not advanced.
Unfortunately, the League and others were unable to testify in opposition to the bills at the June 29 hearing. While we did present detailed written comments on the bills, no verbal testimony was taken from anyone other than the bill’s sponsor. During her remarks, Senator Weinberg noted that she had sent a letter to all the Mayors in the State and only heard back from one Mayor expressing concerns with the proposed legislation. If you have not already done so, we strongly suggest that you contact Senator Weinberg expressing your concerns with the proposed legislation.
The amendments to the Open Public Records Act (OPRA) bill include provisions, which:
Change the requirements on petitions for a protection order to limit the number of and scope of requests, as follows:
Requires a filed verified petition to the Superior Court instead of an appearance before Superior Court.
Must allege that the requestor has sought records, under OPRA, for the sole purpose to harass a public agency.
Add language that permits the governing body to enter into an agreement with a volunteer fire company or volunteer fire department so the municipal clerk can serve as the records custodian for the volunteer fire company/department.
Amend the alarm system exemption in OPRA to only private alarm systems and surveillance cameras.
Add “an intern and volunteer employee” to the definition of Public Employee.
Remove the language that exempted from OPRA the disclosure of personal identifying information of persons under the age of 18.
Remove the address of record provision of the bill which would have permitted an individual to provide an address other than their home address for disclosure purposes.
Add the award of any contract to “advisory, consultative or deliberative material” definition. As a result, material that is used and relied upon during the consultative process prior to the completion of a competitive application, the award of any contract, or adoption of an ordinance, rule, regulation…..would be considered “advisory, consultative, or deliberative” and exempt from OPRA.
Add e-mail addresses provided to the public agency as contact information on any official government form as an exemption to OPRA
Add EZ pass records (or substantially similar) to the definition of public record thereby making it subject to OPRA. However, law enforcement usage of EZ pass would be exempt.
Change requirements for redaction of records, as follows:
Permits the records custodian to provide a certified statement instead of an affidavit.
Requires the custodian to redact information by deleting or obscuring only that information; while not altering, in any manner, the space in the government record formerly occupied by such redacted information.
Amend the provision that allows the records custodian to direct the requestor to the public agency’s website where the records can be found and deem the request to be fulfilled. The language amended requires the requestor, within 7 business days, to “respond to the records custodian with specificity” that they prefer to purchase copies rather than “advising the requestor”.
Add the requirement that the public agency which maintains a government record in a format or medium that can be inspected without charge to the requestor to:
Inform the requestor of the place and time that the record will be available for inspection in such format or medium;
Permit the requestor to purchase copies of such records, at the requestor’s option; and
Allow the requestor 7 business days to respond to the custodian, specifying that they prefer to purchase the copies, otherwise the request may be deemed fulfilled.
When the request is a commercial request:
The public agency may charge, in addition to the actual cost of duplicating the record, a special administrative charge;
A special administrative charge shall be reasonable and related to ongoing operational expense and shall be for expenditures eligible for inclusion;
GRC is to establish the criteria and parameter for expenditures eligible for inclusion; and
The commercial requestor must certify to the fact that the request is for commercial use.
The public agency may require a requester to state whether the requested records are for a commercial purpose
However, the public agency shall not require the requestor to provide the exact purpose of the commercial request
Provide that a Municipal records custodian:
May direct any officer or employee of that municipality having custody of the record to act on the records custodian behalf and make the record available for inspection, examination, copying, or purchase of copies.
However, such direction does not relieve the records custodian of any responsibility under OPRA.
Amend the composition of the Government Records Council, as follows:
1 person who has experience with the news media (instead of 2).
1 person who is a member of the Municipal Clerks Association (instead of a person who has experience with powers, functions or duties of a municipal clerk).
1 person who is a member of the New Jersey Press Association.
The person with experience in State government must have experience as public records custodian.
The amendments to the Open Public Meetings Act (OPMA) bill include the following:
An amended definition of Agenda, which would:
Remove the language “for which notice was given 48 hours prior to the meeting”. Instead, the bill states “no public body shall act upon a matter that is not listed on the agenda.” Please note, the bill still permits the adding on an agenda item after the agenda becomes available, if a majority votes that the item is “of such urgency and importance that a delay for the purpose of providing adequate notice would likely result in substantial harm to the public interest” and the minutes must include the reason why it was added, not on the original agenda, and why delaying action would result in substantial harm to the public.
Remove the requirement to simultaneously make available any government record that is an attachment, appendix, or other documents on the public body’s website.
Add a requirement that the agenda must include a statement that an attachment, appendix or other documents that are a government record is available for inspection, copying or purchase of copies. If such a request is received at least 24 hours prior to the meeting, the records custodian must send an electronic copy of the government record. If such a request is received within 24 hours of a meeting, the documents must be made available to the requestor at the meeting of the public body.
The timeframe, in which minutes must be made available to the public, would be changed from 60 days after the meeting to “15 days after the next meeting of the public body occurring after the meeting for which the minutes were prepared.” The bill still includes the language with the exception of closed session matters.
Removal of the requirement to include copies of any electronic communications that may take place during a public meeting. Instead, the electronic communication must be filed with the municipal clerk for a period of time determined by the State Records Committee to “permit their use in litigation, to enforce the provisions of the Open Public Meetings Act, or for public access”.
Changes to the requirements for posting minutes on the municipal website. Municipalities will still be required to post their minutes, except closed session. However, a statement that the closed session minutes are available upon request if those minutes have been deemed a government record pursuant to OPRA.An added requirement that reports of the subcommittees be open to the public in the same manner as minutes.
As a result of the amendments, the League has the following new concerns with the legislation:
Protection Order: The bill changes the requirements of a records custodian or public agency seeking a protective order limiting the number of and scope of the request. The new language requires that the public agency/custodian allege that the requestor has sought records for the sole purpose to harass a public agency. This threshold makes this provision a ‘toothless tiger’ and will never be met.
Expand the definition of public employee: The bill would expand the definition of public employee to include interns and volunteers. This provision is too broad, unnecessary, and otherwise ambiguous. Currently, any work product of an intern is subject to OPRA under the definition of a government record. However, we question who will fall under the definition of volunteer. For example, is it the member of the volunteer first aid squad that is a non-profit or the Little League football coach to be considered a public employee?
Exemption of alarm systems and surveillance cameras: The bill would limit the disclosure of information, including location, of alarm systems and surveillance cameras to private systems only. As a result, publicly owned alarm system and surveillance camera information, including location, would be subject to disclosure under OPRA. The League is concerned regarding security and privacy issues that may arise as a result of public disclosure of the location of the publicly owned alarm systems and surveillance cameras.
Release of Minutes: The bill would require that minutes be made available as soon as possible, but no later than 15 days after the next meeting of the public body occurring after the meeting for which the minutes were prepared. The League appreciates the intent of this provision, however, this mandated requirement will be challenging in smaller municipalities and in municipalities with limited resources.
Municipal Clerks as Volunteer Fire Company Records Custodian: The bill would permit a municipality to enter into an agreement with its volunteer fire company/department where the municipal clerk would serve as the records custodian for the volunteer fire company/department. Significant implementation and practical issues could arise from this well-intended provision. By their very definition, most volunteer fire companies/departments are independent of the municipality. They have their own headquarters, leadership, and policies and procedures. How will the records custodian be able to ascertain if a record exists or access the records?
The League continues to be concerned with the following outstanding issues:
Subcommittees: The definition of subcommittees has been changed to “any subordinate committee of a public body, except the Legislature, regardless of label, that is formally created by that body, comprised of two or more members, but less than a quorum, of the public body, and recognized by the public body as a subcommittee thereof.” Subcommittees would be required to prepare at least quarterly reports of their meetings that must include; the number of meetings held since the last report, the names of members of the subcommittee, and a concise statement of the matters discussed. Every subcommittee must file at least one report with the public body. A subcommittee report is available for public access in the same manner as minutes of a meeting of the public body. If the subcommittee has given an oral report at a meeting of the public body, then they are not required to submit the written report for that quarter. The public body must determine if a subcommittee meeting is open to the public. If the meeting is open to the public, adequate notice must be provided. The purpose of subcommittees is to make recommendations to the governing body for the governing body to take action. Subcommittees are designed to digest and vet information informally. Subcommittees do not expend public funds nor make binding decisions. That power remains with the governing body. Therefore, they should not be subject to the provisions of the Open Public Meetings Act. Please note that Senator Weinberg strongly believes the language in the bill permits the governing body to make a subcommittee open to the public but does not mandate the requirement. We respectfully disagree.
Prevailing Attorney Fees: The OPRA bill continues to mandate prevailing attorney fees for violation of OPRA, and the OPMA bill is changing prevailing attorney fees from permissive to mandatory. The Courts and the Government Records Council need the flexibility to award reasonable attorney’s fees based on the given circumstances of a particular case. The inherent ambiguities of OPRA often times require clarity which can only be achieved through the GRC. The cost for clarifying these ambiguities is more often than not bore entirely by municipalities and property taxpayers.
Expands the definition of Government Records: The bill expands the definition of government record to include a record that is “required by law to be made, maintained or kept on file.” Currently, if an OPRA request is received for a document that does not exist, the OPRA request is denied and there is no violation of OPRA. By expanding the definition, a Records Custodian will be in violation of OPRA if the record was required to be made (e.g. an old municipal budget) but they are unable to locate the archived record. The bill does provide protections to limit the record custodian liability, but the Records Custodian will still be in violation of OPRA.
Exemption of the Legislature: Both bills continue to exempt the Legislature from many requirements of the Open Public Meetings Act and all of the requirements of the Open Public Records Act. In the interest of transparency and openness, the various exceptions in the Open Public Meetings Act and Open Public Records Act that applies to the Legislature should be removed. The rules that the legislation makes applicable to other governmental bodies should apply equally to all governmental levels and officials.
The League remains concerned with the legislation’s impact on daily operations, staff time and resources, with the subcommittee language, with the continued exemption of the Legislature, and with a municipality’s increased exposure to liability and frivolous lawsuits.
We ask you to carefully consider the impact that these bills would have on municipal operations and budgets. Based on those considerations, please contact your State Legislators, urging them to oppose S-1045 and S-1046.
Contact: Lori Buckelew, Senior Legislative Analyst, lbuckelew@njslom.org, 609-695-3481 x112.
1. All government records are subject to public access under the Open Public Records Act (“OPRA”), unless specifically exempt.
2. A request for access to a government record under OPRA must be in writing, hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian. N.J.S.A. 47:1A-5.g. The seven (7) business day response time does not commence until the records custodian receives the request form. If you submit the request form to any other officer or employee of the Village of Ridgewood, that officer or employee must either forward the request to the appropriate custodian, or direct you to the appropriate custodian. N.J.S.A. 47:1A-5.h.
3. Requestors may submit requests anonymously. If you elect not to provide a name, address, or telephone number, or other means of contact, the custodian is not required to respond until you reappear before the custodian seeking a response to the original request.
4. The fees for duplication of a government record in printed form are listed on the front of this form. We will notify you of any special service charges or other additional charges authorized by State law or regulation before processing your request. Payment shall be made by cash, check or money order payable to the Village of Ridgewood.
5. You may be charged a 50% or other deposit when a request for copies exceeds $25. The Village of Ridgewood custodian will contact you and advise you of any deposit requirements. You agree to pay the balance due upon delivery of the records. Anonymous requests in excess of $5.00 require a deposit of 100% of estimated fees.
6. Under OPRA, a custodian must deny access to a person who has been convicted of an indictable offense in New Jersey, any other state, or the United States, and who is seeking government records containing personal information pertaining to the person’s victim or the victim’s family. This includes anonymous requests for said information.
7. By law, the Village of Ridgewood must notify you that it grants or denies a request for access to government records within seven (7) business days after the agency custodian of records receives the request. If the record requested is not currently available or is in storage, the custodian will advise you within seven (7) business days after receipt of the request when the record can be made available and the estimated cost for reproduction.
8. You may be denied access to a government record if your request would substantially disrupt agency operations and the custodian is unable to reach a reasonable solution with you.
9. If the Village of Ridgewood is unable to comply with your request for access to a government record, the custodian will indicate the reasons for denial on the request form or other written correspondence and send you a signed and dated copy.
10. Except as otherwise provided by law or by agreement with the requester, if the agency custodian of records fails to respond to you within seven (7) business days of receiving a request, the failure to respond is a deemed denial of your request.
11. If your request for access to a government record has been denied or unfilled within the seven (7) business days required by law, you have a right to challenge the decision by the Village of Ridgewood to deny access. At your option, you may either institute a proceeding in the Superior Court of New Jersey or file a complaint with the Government Records Council (“GRC”) by completing the Denial of Access Complaint Form. You may contact the GRC by toll-free telephone at 866-850-0511, by mail at PO Box 819, Trenton, NJ, 08625, by e-mail at grc@dca.state.nj.us, or at their web site at www.state.nj.us/grc. The Council can also answer other questions about the law. All questions regarding complaints filed in Superior Court should be directed to the Court Clerk in your County.
12. Information provided on this form may be subject to disclosure under the Open Public Records Act.
Click here to download OPRA Request Form ( https://www.ridgewoodnj.net/images/VillageOPRA.pdf )
file photo by Boyd Loving Councilmen Jeff Voigt has his OPRA troubles
By Donald Scarinci • 08/15/17 2:22pm
On the heels of several important decisions in the New Jersey courts, the Senate Budget and Appropriations Committee has advanced long awaited legislation to amend state’s Open Public Records Act. The bill (S1046) aims to improve and modernize the statute, while also boosting transparency.
Senate Majority Leader Loretta Weinberg (D-Bergen) has been calling for reform for several years, but has seen prior attempts stall in committee. “There is no issue that overrides the public’s right to know what we in the Legislature and what our municipalities are doing on their behalf,” Weinberg said prior to the budget committee vote.
The OPRA statute has undergone few significant changes since it was enacted in 2002. Since then, the nature of government records has changed, largely due to the proliferation of the Internet, email and cell phones. One provision of S1046 would extend public record obligations to quasi-governmental organizations engaged in service to the public, such as the New Jersey League of Municipalities and the New Jersey School Boards Association. Another would allow residents to send records requests via email.
Megan Burrow, Staff Writer, @MegBurrowPublished 8:29 a.m. ET Aug. 2, 2017
TEANECK — A Superior Court judge has ruled that the township must pay legal fees to Elie Jones, a township resident that Teaneck had sued to bar him from filing public records requests after he flooded the clerk’s office with hundreds of requests over the course of two months.
“I feel the township sued a resident improperly,” Jones said. “I’m statutorily allowed to request documents through the Open Public Records Act. They improperly sued me and this is the result.”
The open public records act is designed for a transparent government. Transparency so the public has access to otherwise hidden information. Anyone has the right to ask for public documents to determine if government officials are doing their job.
You ignored Voigts criminal and immoral act and decided to attack members of the public for doing something legal. Are you seriously blaming victims for the illegal act of a crazy elected official? If the village attorney is defending Voigt then it’s costing us money. Is the village attorney defending voigt? Residents should demand our tax dollars not be used for voigt criminal defense.
Updated on June 16, 2017 at 7:30 AMPosted on June 16, 2017 at 7:29 AM
BY SOUTH JERSEY TIMES EDITORIAL BOARD
Monroe Township in Gloucester County, it turns out, has a Hillary Clinton problem.
A Superior Court judge has just ruled that the township government violated the New Jersey Open Public Records Act because it failed to turn over in an OPRA request all emails leading to a change in its ambulance service.
The fact is the Open Public Records Act Designed to shine a light on the individual agendas of elected officials such as yourself Mr. Voigt. Remember you are a public SERVANT meaning you work for us. OPRA is a simply way for the public to keep an eye on the special interest agenda, back dealing that controls so much of New Jersey politics.
Funny how Voigt refers to “the mayor’s supporters.” All these people supported Voigt and the Mayor did, too. She had his sign in her front yard and campaigned for him. Looks like a boatload of people got fooled by him. What a crummy person he turned out to be. So nasty, paranoid, and not doing a single thing he campaigned to do. He was dead set against the garage, now he pushes for it. he was dead set against the nastiness of Arnonsohn and company, now he personifies it. he was dead set against underhanded dealings, now he is in bed with the press. he was an advocate for the people, now he is vilifying the citizens.
In the letter Mr Weitz once again demonstrated the lack of professionalism that permeates the Financial Advisory Committee or FAC. If Mr Weitz or any other members of the FAC had ever had a job in Finance he would understand that every single communication is monitored by corporate compliance department.
In the late 90’s I was working for a firm called Dean Witter and in the coarse of business each week you would make hundreds of phone calls . One month I was called into compliance who promptly showed me a printout of phone numbers I had called that month ,yes everyone and singled out a certain number I had called once everyday . The number was my grandmother’s who was dying and I would just check in on her. The compliance officer simply apologized and added the number to the OK to call list .
Mr Weitz goes on to say ,”Shortly thereafter, the Deputy Mayor filed an open record request for any email Voigt received that contained my last name. Even more disturbing, several private individuals filed open records requests for any emails sent from my private email address to Voigt.”
Mr.Weitz that statement alone disqualifies you from serving on any financial board or being involved in any Municipal business . Any professional would know that there is no such thing as “private emails” in finance and no such thing as private emails doing the peoples business in politics .
OPRA requests are a legitimate part of Municipal operations. Questioning OPRA’s leaves many to question validity of committees like the FAC and raises further questions as to the motivations of certain politicians.
Open. Public. Records. Act. Designed to shine a light on the individual agendas of elected officials such as yourself Mr. Voigt. Remember you are a public SERVANT meaning you work for us. Not the other way around. I have never regretted a vote in any election as much as I regret the one I cast for you.
Stopped the paper after decades. Grew up reading great NYC dailies. It has deteriorated to trash. This seems to have a reporter,& councilman with similar vested agendas. That paper has trashed Christie, the Boy Scouts & the Roman Catholic Church regularly. Add Ridgewood to the caustic, repetitive onslaught that never has an ending. Very, very disappointed in this new politician.
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