Wednesday, March 12, 2014

City of Hackensack facing OPRA lawsuit

On March 7, 2014 a lawsuit against the City of Hackensack was filed by Donald Lenner, Esq. in Superior Court on behalf of Jason Nunnermacker.  According to the lawsuit, Nunnermacker made an Open Public Records Act request on January 17, 2014 seeking copies of legal bills submitted to the City of Hackensack by the firm McElroy, Deutsch, Mulvaney, and Carpenter, LLP.  On January 21, 2014 the City Clerk, Deborah Karlsson, advised Nunnermacker that there would be a $450 special service charge in fulfilling this request.  

After being asked for clarification, Thomas Scrivo (the City Attorney) advised Nunnermacker that over 300 pages of billing invoices would need to be reviewed for privileged and confidential information.  The special service charge for doing so would be $450.

Donald F. Burke, Esq., a lawyer who practices in the area of freedom of speech and governmental transparency, has been in ongoing discussion with the City Attorney regarding similar charges quoted to Steven Gelber (myself).  On January 14, 2014, I requested copies of legal bills and was quoted a special service charge of $900.

In an interview for this article, Burke said: "Bills for legal work provided to a governmental entity are by their nature records over which there should be no expectation of confidentiality."  He went on that, "records of billing should be expected to be scrutinized by the public who ultimately pay the bills."

In discussion with the City Attorney, it was represented to Burke (on February 20, 2014) that in an effort to avoid litigation, the bills would be provided, without charge (the bills have yet to be provided).

With regard to the practice of charging to redact confidential information from legal bills, Burke stated: "Injecting allegedly confidential communications into the bills and seeking a fee to review and redact such material effectively thwarts well-settled interests in governmental transparency." To this end, Burke has requested an enforceable agreement with the City of Hackensack to insure future bills for legal services rendered will be prepared with the understanding that they will be subject to public disclosure.  He went on that if Hackensack does not agree to such an enforceable contract, he believes the public interest can be defended by way of injunctive relief seeking same.

In a statement to The Hackensack Scoop, Nunnermacker said: "It is incredulous that the City's administration is blocking residents' access to public information by levying unwarranted and excessive fees to gain such information."  Nunnermacker, who ran against the current council cites their campaign literature.   Nunnermacker remembers that "CFC campaigned vigorously on 1) making government more transparent and accessible and 2) reducing attorney's fees."  He went on that "the refusal to provide public documents has not only invited, but demanded, legal action which the City is now compelled to spend attorney's fees to defend. It is clear that the attorney's fees will cost much more than the $450.00 charge it seeks to impose. As a result, CFC has managed to break two campaign promises at the same time."

If this matter is not settled, it will be heard before Judge Doyne on April 17, 2014 at 11:00 am.