Sunday, June 15, 2014

Galloway Township Loses Lawsuit Filed by Open Government Advocate John Paff; Township Attorney Wants to Appeal

John Paff
After the Township spent over $20,000 in legal fees and costs, a lawsuit filed against the Township in 2013 has now received a decision by the Judge. 

On Tuesday, June 10, 2014, Superior Court Judge Nelson Johnson issued an order against Galloway Township Clerk TC Kay and the Township and ruled in favor of the Plaintiff John Paff. 

The order was the result of a lawsuit filed in Atlantic County Superior Court on August 19, 2013, alleging the Township refused to provide Paff with "copies of emails logs that they are capable of producing and have produced in the past." 

The ruling orders the Township to provide the documents that Paff requested. After the ruling was issued Galloway Township News filed our own Open Public Records Request (OPRA) for the email logs the Township previously denied not only to this publisher, but also to John Paff. 

Township Solicitor Michael Fitzgerald immediately replied to our request and stated, "Judge’s Johnson’s decision is being stayed pending an appeal to the Appellate Division.  Accordingly, the Custodian will deny the request since no such record exists."  Such denial leaves the Township open again for additional litigation since the Judge already ruled the documents were public documents. 

The question arises, what does the Township have to gain to even appeal a decision after they admitted the data exists and can be produced, further costing the taxpayers more money in legal fees?

Galloway's own IT Professional Staff Eric McCarthy admitted in depositions that the Township had the programming available at the time to produce the email logs requested by Paff prior to moving the data to a new program for a part of the Township in July 2013. 

The Township still has the capability to produce the email logs for the Police Department. McCarthy even stated in depositions that the "OPRA requests" stopped coming to him to fulfill. Not because he couldn't fulfill them, but because the Custodian stopped giving them to him so he figured out the Township wasn't releasing them anymore.  

According to the NJ Law for OPRA, a Custodian can be found in violation and found to be fined if they willfully and knowingly deny a request that can be fulfilled. 

Councilman Frank Gargione was not aware of the Judges decision nor was he aware the Township would appeal such decision. Galloway Township Council has not voted on any additional litigation or appeal to the Appellate Division since the decision came out on June 10th. 

According to legal bills of Township Solicitor Michael Fitzgerald, the Township has already spent well over $20,000 in defending the lawsuit. Accordingly the law states since the Plaintiff was successful in the lawsuit, the Township will also have to pay the legal fees for the plaintiff. Leaving the Township to possibly pay over $30,000 in legal bills for denying email logs. 

In discussing the ruling John Paff stated, "Unlike paper records, computer databases can be queried to extract certain data and then to sort and filter that data into a report that meets the user's specifications." 

Paff further explained, "So, if a municipality has a database of the checks it has written, should citizens be allowed to request, for instance, a report showing all the checks written between May 1, 2013 and May 31, 2013 in which the check amount is greater than $5,000 sorted by date?  I would say "yes" as long as the government computer system can execute the query."

According to Paff, Galloway, in essence, argued that OPRA doesn't require it to query its e-mail database to produce a list of e-mails sent or received by a specific person during a certain date range.  The Township's lawyer argued that OPRA does not require Galloway to produce reports but only requires them to disclose non-exempt reports that already exist.  

"That's a reasonable position to take in the world of paper records, but when the government's information is contained within a computer database, who is to say what a "record" really is?  Every query that is submitted to the database returns a report that is arguably a "new" record that had to have been created," Paff stated.  

Paff further stated, "Galloway's position seemed to be "We want to have the ability to query our computer databases and produce any reports we want for our own internal reasons, but we want to deny citizens the same level of access."  

"I don't believe Galloway's position was reasonable because the benefits of computerized data should be available to the government and the citizens alike," Paff included.   

Maintaining parity between a citizen's and the government's abilities to access government data is becoming more important as more and more data is being kept in computer databases as opposed to paper records.

In closing, Paff stated, "Judge Johnson decided, in effect, that citizens have the same access to nonexempt data contained in government databases as the government itself.  If it would take an hour of a computer specialist's time to write and execute a query that will produce the report that the citizen wants, then there's nothing wrong with charging the citizen for an hour of the specialist's time.  But, when a report can be generated in a few seconds by a few keystrokes, the citizen should get the requested report for free."

"I hope that the reasoning Judge Johnson employed in this case is replicated by other judges in other cases," Paff further stated. 

Galloway Township News has released the ruling and deposition of IT Professional Eric McCarthy below. 


Anonymous said...

Something is seriously wrong here

Anonymous said...

So the Township spends $20k and has no clue that they lost and the attorney wants to pad his bank account with another $20k. Yea, sounds like Galloway's disfunction is back in full swing again.

Anonymous said...

I am tired of this regime thinking that they are above the law and spending my tax dollars however they feel to hide whatever they are doing. How about they be responsible personally for this type of activity and you will see a whole different attitude on council. Maybe a recall is in order.

Anonymous said...

Isn't it the responsibility of the township solicitor to inform council members of any pending or decided litigation? Shouldn't they vote on weather or not to extend this into appeal( which they will probably lose). There is no excuse for a councilman to be left in the dark on something that could cost his constituents wasted tax dollars!

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