Free OPRA Forum in Flemington NJ, Wednesday, September 23, 2015 7:00 PM – 9:00 PM

The New Jersey Foundation for Open Government (NJFOG) will be hosting a free OPRA Forum on September 23, 2015 at 7 p.m. at the Historic Hunterdon County Court House, 75 Main Street, Flemington, NJ 08822. The site is best known for “The Trial of the Century,” the famous trial involving the 1932 kidnapping of Colonel Lindbergh’s son.

NJFOG officers John Paff and Walter Luers will be among four panelists. They will be joined by Megan Jones-Holt, Executive Director of the Flemington Business Improvement District, and Sergio Bichao, an investigative reporter for Gannett Media.

It should be an informative discussion! See our facebook event invite HERE and let us know if you’re going. You can also reach us at info@njfog.org or 908-894-5656.


THE PANELISTS:

Megan Jones-Holt

Formerly a member of the Town of Clinton Council, Jones-Holt resigned her seat to join the Flemington Business Improvement District as Executive Director in September 2013.

She currently sits on the boards of DowntownNJ and Hunterdon Crime Stoppers and is Vice Chair for Hunterdon Prevention Resources. She also served on the Clinton Planning Board, the Hunterdon Land Trust's ad hoc committee for Dvoor Farm, and the Cancer Support Community.

A member of the Clinton Sunrise Rotary Club, she has served as District Governor for Rotary International and has a Rotary Radio show with the Hunterdon Chamber of Commerce.

Jones-Holt’s resume includes more than 20 years of experience in event planning & consulting, executive planning & administration, marketing and communications. She is Events Director/Planner and owner of CPR Event Rentals in Flemington. She is a Certified Event Rental Professional and a past president of the American Rental Association of New Jersey.

Jones-Holt holds a Certificate of Downtown Business Management from Rutgers University.

Sergio Bichao

Sergio Bichao is an investigative reporter whose work appears in the Courier News, Home News Tribune, Asbury Park Press and MyCentralJersey.com. Previously, he was a reporter and the front page editor for The Jersey Journal.

Bichao has been working for daily newspapers in New Jersey since 2006 and before that published his own local news website covering his hometown of Hillside. He filed his first Open Public Records Act request in 2002, the year when the law first took effect. Today he files as many as a dozen requests every month as part of his job to uncover waste and wrongdoing by public agencies and officials.

Bichao is a graduate of the Honors College at Rutgers-Newark and lives in Somerville.

Walter Luers

Luers is an attorney licensed to practice law in New Jersey. He graduated from Rutgers University in 1996 and from Fordham University in 1999. Since 2007, he has concentrated on matters pertaining to the Open Public Records Act (OPRA) and the Open Public Meetings Act (OPMA). He advises and represents individuals and corporations in lawsuits and administrative actions against public agencies that have violated these laws. In 2010, Luers was recognized by the New Jersey Law Journal as one of ten “Lawyers of the Year” for his work in OPRA. He regularly speaks to community groups around the State about OPMA and OPRA and has been the president of NJFOG since June 2011.

John Paff

John Paff has been dubbed “New Jersey’s busiest open government activist” by reporter Colleen O’Dea, who featured him in her February 2014 piece “Profile: The Man Who Makes Sure Government Works – Right Out in the Open.” He was also featured in a May 2015 Philadelphia Inquirer article by Jan Hefler entitled “The transparency guru of New Jersey.”

In 2014, Paff was honored as the year’s sole award winner and 15th inductee into the State Open Government Freedom of Information Hall of Fame. Known as the “Heroes of the Fifty States,” the joint initiative of the National Freedom of Information Coalition and the Society of Professional Journalists recognizes the recipient’s “long and steady effort to preserve and protect the free flow of information about state and local government that is vital to the public in a democracy.”

Paff is currently serving his third term as NJFOG’s treasurer. In addition, he has served as the Chairman of the New Jersey Libertarian Party’s Open Government Advocacy Project since 2003. His focus has been to ensure that public agencies are following the OPRA and OPMA laws. He writes about noteworthy issues in his blog NJ Open Government Notes, one of several blogs he maintains to discuss matters of public interest.

John is a graduate of Rutgers College, New Brunswick. After college, he operated an insurance agency for several years in New Brunswick and North Brunswick. He has served as a member of the Middlebush Volunteer Fire Department since 1992 and served as the Department’s president from 2009 to 2014.

New Jersey OPRA Amendment Benefits Crime Victims

For immediate release



A bill amending New Jersey’s Open Public Records Act (OPRA) to recognize the special needs of crime victims was signed into law on July 30th. A1676 provides that a crime victim can obtain his or her own records at no cost and that the victim’s request for those records is not public information.

While there is currently no charge under OPRA for electronic delivery of records, a fee applies to paper copies. Under the revised law, fees would be waived for crime victims requesting their own records.

The bill has numerous sponsors and co-sponsors including Senator Loretta Weinberg, who has been a champion for OPRA reform.

The new law was written and shepherded by Unchained at Last, a non-profit organization devoted to helping victims of arranged marriage and domestic violence. Fraidy Reiss, the organization’s founder and president, points out that it is necessary to prove a pattern of abuse when seeking a final restraining order from a judge and that one of the best ways to do that is to request copies of the incident reports and prior restraining orders, for which cost could present a barrier to obtaining the records. Further, exempting such requests from the public domain allows for the privacy and safety of the requestor.

Reiss received the backing of the New Jersey Foundation for Open Government (NJFOG), which assisted with the draft of the law. NJFOG is the only non-profit in the state devoted exclusively to improving New Jersey’s Open Public Records Act and Open Public Meetings Act and educating the public about these laws.

While acknowledging that what is now a public record will become non-public under the new law – the crime victim’s document request itself – NJFOG president Walter Luers stated, “The OPRA amendment, in our view, will not diminish access to public records but will instead enhance access for crime victims.”

The new provisions take effect on November 1, 2014.

Foundation For Open Government Seminar March 23: Citizens’ Rights to Government Information

Citizens’ rights and obligations under New Jersey’s Open Public Records (OPRA) and Open Public Meetings Acts (OPMA) will be the subject of a seminar March 23rd at the Clementon Community Center, 165 Gibbsboro Road from 11:30 am to 5 pm.

The seminar is sponsored by the NJ Foundation for Open Government, a state-wide organization which advocates for transparency in government, educates residents in their rights and how to get information and data using the laws and files court actions to force compliance.

“We focus on Municipal Governments and Boards of Education where some of the worst abuses of withholding information from the public occur,” said Walter Luers, an attorney who is President of the Foundation. “Government, in our view, functions best in the bright light of day and we try to help citizens shine that light on their governments,” Luers said. The foundation has participated in numerous suits against governing bodies for violations of the Open Public Records act.

Two panel discussions will be held followed by audience questions. The fee of $10 on line and $15 at the door covers lunch and refreshments. The cost to students with valid student ID is $3

Hon. Samuel Cianfarini, Committeeman West Deptford Township will be recognized for his work in promoting and advocating for open government. Two Citizen Awards are to be announced.

1:15-2:30: PANEL 1. Open Public Records Act and Open Public Meetings Act from a Government Perspective. This panel will discuss OPRA and OPMA issues from a government perspective and the challenges they face. Moderator: Walter M. Luers, Esq.

Panelists:

Anthony H. Ogozalek Jr, Esq. of Beckman, Roth, Ogozalek and Perez, Gibbsboro, NJ Solicitor: West Deptford Township, Clementon Housing Authority Assoc. Counsel: Burlington County Board of Social Services Honorable Richard Direnzo, Councilman Haddon Heights Borough Ginny Murphy, Vice President Washington Township Board of Education (Gloucester County) Vice President Gloucester County School Board Association New Jersey School Board Association Board of Directors, Member

PANEL 2. Open Public Records Act and Open Public Meetings Act from a Public Perspective. This panel will discuss case law and issues facing the public in regards to OPRA and OPMA.

Panelists:

 Walter M. Luers, Esquire; John Paff, Citizen Activist; Krystal Knapp, Professional Journalist

4:00-5:00: Question and Answer about OPRA/OPMA, group discussions.

To participate in the seminar register at Njfog.org or call 908-894-5656

Brewer v. Middletown: Court orders Middletown to release employees' personal health insurance information

Middletown has long declined to reveal the names of those enrolled for township health benefits, while many other towns as well as Monmouth County, have taken the position that the information is public. NJ Superior Court Judge Lawrence M. Lawson in last week's ruling, established that the info is indeed public and is applicably to all of Monmouth County.

This ruling is a clear victory for open government advocates and those that have been calling for Middletown to be more forth coming and transparent  in disclosing information that residents and tax payers have a right to know.

From the Asbury Park Press:

MIDDLETOWN — A state Superior Court judge has ruled that a township man is entitled to public records showing which township employees receive taxpayer-funded health care coverage after officials denied a request for the documents.

Judge Lawrence M. Lawson ruled that the township, which provides a group health plan to its employees, must disclose the names of employees who are enrolled, the type of coverage elected by each employee and the annual cost of coverage for each type of election, under common law access rights.

Township officials plan to discuss whether to appeal Lawson’s Jan. 7 ruling or comply with it at the Township Committee’s Jan. 21 meeting, Township Attorney Brian Nelson said.

Township officials are concerned with violating the Health Insurance Portability and Accountability Act (HIPAA) and the Employee Retirement Income Security Act (ERISA), which can carry substantial fines for violations such as revealing an employee’s personal information, Nelson said.

“We fear an employee could file a complaint with the federal government, which has significant penalties if we release information,” Nelson said. “The problem here is we have have a series of (records) requests where people could put the information together and figure out the claims data.”

However, Walter Luers, president of the New Jersey Foundation of Open Government and attorney for resident Lee Brewer, who filed the suit, disagreed that the requested information would put the township in jeopardy of violating HIPAA. Luers said he was confident the decision would be upheld if appealed. The suit was filed in July.

“It’s exactly what we wanted,” Luers said of the decision. “In (public records) cases like this, once the trial judge makes a decision, it’s usually affirmed on appeal. Judge Lawson’s decision is pretty firm.”

Brewer, of Crawford Road, made a request July 5 under the Open Public Records Act and common law for the names of everyone, including employees, retirees and appointees, who were enrolled for health coverage with Middletown Township since Jan. 1, 2008, according to the lawsuit. Brewer also had asked to be informed about whether the coverage was for a single person or for additional family members, and the cost of the insurance to the township, according to the lawsuit.

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Middletown Is Sued for Names of Health Benefits Enrollees

For Immediate Release
7/23/2013

(MIDDLETOWN) – Today, Middletown resident Lee Brewer filed a lawsuit in Superior Court against Middletown Township to obtain the names of enrollees for health benefits with the municipality. The suit is seeking enrollment dating back to 2008. Brewer is represented by attorney Walter Luers.

“Many other governmental agencies make these records readily available to the public,” Middletown Democratic Party chairman Don Watson pointed out.

In fact, the Township of Middletown Sewerage Authority recently disclosed the same data that Middletown Township is withholding.

The case was brought because Township officials claim that the names of enrollees are confidential under the Health Insurance Portability and Accountability Act (HIPAA).

Walter Luers stated “HIPAA covers claims data and medical information. Revealing the type of coverage or who is covered does not shed any light whatsoever on claims, claims data or medical procedures.”

The Township has also argued that because it self-insures for health coverage, it is a payor like an insurance company, whose records are generally not subject to disclosure.

“If a governmental body could keep who it’s insuring a secret simply by paying its own claims, those inclined to bend the rules would have a huge incentive to self insure,” said Mr. Watson.

“The Township’s position prevents the public from ascertaining whether people are receiving health benefits who should not be receiving them, such as outside professionals or retirees who should be on Medicare. Public agencies, whether through malfeasance or negligence, have people on their health insurance rolls all the time who should not be there,” said Luers.

According to Luers, the question has already been addressed by the courts. In 2005, the New Jersey Superior Court ruling in the case of Michelson vs. Wyatt established that release of certain coverage information – specifically, enrollee names and coverage selections – serves the public interest by preventing waste and abuse by government.

The Michelson decision, therefore, established the public’s right not only to the names of health benefits enrollees, but also to the information needed to compare costs under various insurance options.

Middletown Township expects to pay close to $9 million dollars for health benefits in 2013, almost 14% of the municipal budget.

Sunshine Week; A Time To Shine Light On Proposed Law That Would Roll Back Transparency

by Linda Baum
March 10, 2013

March 10th marks the start of “Sunshine Week”, so named to shed light on the importance of open government and public access to information. Its arrival is timely because amendments to the Open Public Records Act (OPRA) and Open Public Meetings Act (OPMA) are now working their way through the New Jersey legislature.

Bill S2512 (A3712) is intended to modernize and reform the OPRA law. However, one key provision will not result in reform at all and may instead dramatically curtail governmental transparency. The matter involves just one little word – changing “shall” to “may” – with respect to court award of plaintiff’s legal fees. The change would eliminate the guaranteed recovery of fees for a successful suit.

It doesn’t take a genius to figure out that the result will be far fewer challenges when governmental entities deny access to public information, even when access is denied in clear violation of the law. Not only will this reduce transparency, but it creates an incentive for fraud and abuse by government.

Even when a suit is brought, the army of publicly-funded lawyers available to governmental offices creates an unfair advantage. This emphasizes the need to empower the public by ensuring their legal costs are recoverable if they win.

Senator Loretta Weinberg is a primary sponsor of S2512. Please take a moment to call or email the Senator to urge her to keep mandatory fee-shifting in the OPRA law. Please call her at (201) 928-0100 or send her an email via website http://www.njleg.state.nj.us.

Walter Luers, president of the New Jersey Foundation for Open Government (NJFOG), penned the below letter opposing the change to the fee provision. The letter is intended for use as a draft by other organizations and members of the public in their correspondence with state legislators. Mr. Luers does a very good job explaining the issue.

*****

Honorable Loretta Weinberg
District Office
545 Cedar Lane
Teaneck, NJ 07666

Re: S2512

Dear Senator Weinberg:

I am writing to oppose any amendment of the Open Public Records Act (“OPRA’) that changes the requestor’s entitlement to an award of reasonable attorneys’ fees from “shall” to “may.” In particular, I am writing with respect to S2512.

As you know, mandatory awards of reasonable attorneys’ fees to prevailing members of the public have been in OPRA since it was first passed. Mandatory fee-shifting guarantees that there will be at least some lawyers who are willing to handle OPRA cases for members of the public and non-profit groups who do not have the resources to pay lawyers the several thousand dollars it costs to bring an OPRA case in Superior Court.

If citizens and non-profits who are denied access to public records are also denied access to lawyers, they will be effectively disenfranchised and will not be able to participate meaningfully in government.

Unfortunately, government agencies routinely deny access to public records. Municipalities deny access to settlement agreements. County prosecutors deny access to criminal files, even for closed cases. Police departments deny access to routine arrest records. State agencies deny access to records on the basis that the records requests are “overbroad,” even in cases when the records are easily identifiable. While there are always exceptions, there continues to be a strong culture against disclosure. That can only be countered with strong activism through many means, including the Court system, with the assistance of competent, diligent and experienced legal counsel.

Relative to the resources of citizens, public agencies are immensely powerful. The State of New Jersey has its own law firm – the Office of the Attorney General – to defend it in OPRA cases. All counties have in-house counsel or powerful law firms that routinely represent them. The larger cities and municipalities have lawyers who work in-house or have lawyers on retainer. Every municipality has access to lawyers who regularly advise them on legal matters, including OPRA. As you know, taxpayers pay for all of these lawyers.

Mandatory fee-shifting in OPRA is not an advantage; rather, it was intended to level the playing field. The attorneys who work for public agencies and who handle OPRA cases are guaranteed payment, regardless of outcome. If the attorneys who work for public entities are guaranteed to be paid no matter what happens in a case, then it is only fair that lawyers who handle OPRA cases against public entities should be paid a reasonable fee in every case in which they prevail.

I emphasize that attorneys’ fees must be reasonable. While fee-shifting itself is mandatory, Courts and judges already have broad discretion to determine the amount of those fees, relative to the success achieved (among other factors).

If the fee-shifting provision in the law is changed to “may,” it will create, at best, a tremendous amount of uncertainty regarding the circumstances under which attorneys would be entitled to fees. This uncertainty will reduce the public’s access to competent lawyers.

For these reasons, I urge you to retain mandatory fee-shifting in OPRA.

Sincerely,
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