Saturday, May 31, 2014

City of Hackensack to pay resident's attorney fees after improper denial of OPRA requests

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.

Regarding this matter, Donald F. Burke, Esq., a lawyer who practices in the area of freedom of speech and governmental transparency 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."

Burke had several discussions with the City Attorney on this very matter when the City quoted me $900 for the redaction of legal bills.  After having billed the City $150 for these conversations with my attorney, the City Attorney advised residents there would be no fee (going forward) for the redaction of bills (perhaps Mr. Scrivo's firm should pay Mr. Burke for his "consult," as according to Contillo's ruling, his position had better legal basis....).

Former City Attorney Richard Salkin, who was inadvertently provided unredacted copies of the bills in question, has contended at public meetings that it is not very difficult to be careful when preparing invoices as to not reveal confidential information, as the City Attorney you have to have an expectation that these bills will be reviewed by the public.  The City Attorney later redacted these bills, sent them to Salkin, and requested he return the unredacted copies (Salkin, did not).

Despite the City Attorney redacting these legal bills and providing them to both Richard Salkin, and myself, without charge, the City continued to deny Nunnermacker access to the bills without payment of a $450 service charge.  According to court documents, the City contends that in the hustle and bustle of running a City, this request slipped through the cracks.

The Honorable Robert Contillo rules (May 27, 2014)

Though the City contends Nunnermacker's suit was not the reason he was provided the bills, the Honorable Robert Contillo found that the bills were provided on the same day the City was served with the complaint and he states in his ruling that "had plaintiff not brought suit, the records would not have been produced to him without the pre-payment of the $450 special service charge."  Contillo further states that "shifting to the requestor reasonable legal expenses incurred by the City in complying with the request (here, said to be $450) will price out some subset of requestors."  Contillo goes on that the City's policy of shifting the fees for redaction of bills to the residents lacks any support under the law and has the "inevitable effect of restricting access to public records."

Nunnermacker states:

I made many attempts by telephone, e-mail and coming to a meeting to gain public documents, which by State law, must be immediately accessible to Hackensack citizens. I advised the Mayor and Council that the City's position as to my OPRA request was entirely frivolous but such warning fell on deaf ears. Despite campaign rhetoric of making government more open and transparent, this Mayor and Council continually frustrated and blocked my efforts to obtain basic public documents compelling me to file suit with the Court to enforce fundamental rights as a resident of the City. Now, a Presiding Judge of the Superior Court has found that "the City's policy would have the inevitable effect of restricting access to public records" while holding that the Mayor's and Council's position on open, government records to be entirely baseless and contrary to the basic rights of Hackensack citizens.

Despite empty campaign promises to reduce attorney's fees and while relying upon questionable legal advice, the City has paid the City Attorney in excess of $5,000.00 in tax payer money to date in an attempt to obstruct access to governmental records. In addition, the Court has ordered that the City must now pay my own legal fees, which will also be several thousands of dollars. Accordingly, over $10,000.00 of tax payer hard earned money has essentially been flushed down the toilet by the Mayor and Council.

Donald Lenner, Esq., who represented Jason Nunnermacker in this matter has ten days to submit an invoice for consideration.  According to public records, the City Attorney billed $5,412.88 in connection with this matter in the month of March alone.  With the matter not having been heard until May, and Lenner's bill yet to be prepared, I can only imagine how much more this farce will cost the tax payers.