As a result of confusion surrounding which city offices and what workers should reply when a public information request is submitted, the city may be forced to pay legal fees.
Superior Court ruled last week that the City of Bayonne must pay legal fees after it failed to supply information under the Open Public Records Act (OPRA) by denying a records request to Mark’s Advanced Towing of Bayonne.
In 2010, the company asked for information regarding applications for towing licenses, and the city denied the request saying it was “unduly burdensome, vague and onerous.”
When the company said it re-filed with a more specific request, the city claimed it had not received it.
The city eventually gave up the information after being ordered to do so by a court, but the towing firm had already spent $6,000 in legal fees.
Obtaining records from the city of Bayonne has been an issue over the last several years. The Bayonne Community News was denied a request for a list of adult summer employees over a year ago when the city mistakenly thought the request was for a juvenile list. Another resident also complained that he was denied when he sought records concerning employees being reassigned from the Municipal Utilities Authority to the city’s employment rolls.
More recently, Cherie La Pelusa filed a complaint with the Government Records Council (GRC) after she received a refusal on a request for information, including information on salaries, budgets, bills paid, contracts, and other agreements such as public employee salary and over-time information.
“After I filled the request on Feb. 8, I waited to start calling them until Feb. 21. Nobody answered phone.” – Cherie LaPelusa
Disclose, or explain why not
Under the state law, the information is supposed to be available within seven days or else an explanation must be given as to why it cannot be provided.
“After I filled the request on Feb. 8, I waited to start calling them until Feb. 21. Nobody answered the phone,” La Pelusa said.
She said she left messages on the machine again on Feb. 22 and Feb. 23, and with a different clerk in the law department on Feb. 29, at which point she went to the office, where there seemed to be some confusion about her request.
A report from the state said that the city listed the wrong person as the Custodian of Records.
“Marybeth Golden is not the Custodian for the City of Bayonne. City Clerk Robert Sloan is the Custodian,” Investigator John Stewart said. “I eventually got this straightened out with Mr. Sloan and am presently awaiting a return of a signed memo of understanding, which must be signed by the City Clerk and the Custodian’s Counsel.”
But later, Stewart learned that Bayonne did not actually have a person assigned to supplying public information.
“Your city’s resolution actually designates a position, not a person,” he said. “The position is the Director of the Department of Law (now, the Law Division), but this is for the deputy custodian. The custodian is still the City Clerk by law. In Bayonne, the City Clerk is Mr. Sloan.”
Charles D’Amico, director of the Law Division, apparently delegated the La Pelusa request to another attorney in the law department, Stewart said, noting that the GRC will be mediating the La Pelusa request with the city on her behalf.
Stewart said that if La Pelusa is entitled to the records, the state will order the disclosures and may ask the Office of Administrative Law to impose a fine against the Custodian.
The court can also ask the city to pay the legal fees incurred as a result of the denial.
“After a municipality pays several thousand dollars in attorney fees, it tends to pay closer attention to OPRA and becomes more responsive to the requestors,” Stewart said. “The caveat is that the majority of people requesting municipal records are residents of that municipality, and they are in effect paying those fees via their tax dollars. Taxpayers do not pay custodian fines because the fines are against the custodian personally. This provision of OPRA was specifically designed to avoid penalizing taxpayers for the wrong-doing of records custodians. Of course, there is nothing in OPRA preventing the municipality from indemnifying the custodian in such a case.”
“This administration claims to be transparent and is still hiding many public records,” he added.
Charles D’Amico, director of the city’s Law Department, said he was not aware of any complaint being filed.
“I have received no notice of it,” he said.