More Than Just Ethics: The First of Three OPRA Cases Validates Parent Concerns on District’s Costly and Improper OPRA Redactions
The Government Records Council (GRC), also known as the authority on government records, a/k/a documents requested under the Open Public Records Act (OPRA), recently confirmed suspicions that the Berkeley Heights Public School (BHPS) Records Custodian (Currently Julie Kot and ‘designee’ Steve Hopkins) inappropriately redacted (to black or white-out) responsive records.
This ruling and fact are substantial because Ms. Kot has complained for the last few years about the time it takes her to remit responsive documents for OPRA requests in which she cannot manage her other responsibilities. Fulfilling OPRA requests is part of the job of the Business Administrator. Due to what Dr. Varley claimed to be an ‘onslaught’ (but failed to identify factors or a definition), Ms. Kot made a plea to hire YET ANOTHER human to help her do her job – bringing the Business office employee count to 10 humans.
So, here’s where it gets good. The ruling, in this case, has established that the District (in 2020, even before the reign of terror brought forth by Ms. Kot) has made it bad practice to overly redact government records. Plainly and simply, the District is keeping public information from the public. How much time have you paid for the unnecessary redaction of public records by the Business Administrator and district lawyers? It’s hard to say. But, alas, we have just voted to shell out another $12,000 annually to address OPRA requests.
Regarding the specific legal redactions that the GRC deemed “not exempt” were several instances whereupon the language “OPRA” or “Open Public Records Act” was redacted. Could it be a simple misunderstanding by the legal firm preparing these bills and redactions? Or, have we historically had legal representation that was trying to cover up the total hours the district lawyers spent fulfilling OPRA Request; be it redactions, consultations or advice?
Ponder this; our district lawyers are preparing, redacting, remitting and defending OPRA cases for our District. You and I are paying their hefty bill. The ill-advisement of the district lawyer, who is present at all Board meetings, has cost the taxpayers of Berkeley Heights thousands of dollars defending the Board for unethical actions under the watch of the district lawyer in attendance, including but not limited to:
Dr. Varley’s Nepotism;
Pam Stanley’s multiple ethics violations in her use of Board attorney and resources to prepare and defend her case (on behalf of the Board) against Ms. Akiri;
Robert Cianciulli’s multiple ethics violations surrounding the motion to have the Board attorney prepare an ethics complaint against Ms. Akiri;
Jordan Hyman, Robert Cianciulli, Angela Penna, Mike D’Aquila, Joy Young and Pam Stanley all voted to have the district attorney research and prepare an ethics complaint against their fellow Board member AND voted to have taxpaying residents pay for the expenses associated with the preparation and defense of said case;
Angela Penna & Mike D’Aquila’s unauthorized Letter to the Editor in which legal bills show consultation with district attorneys prior to the publication of said letter;
Two additional OPRA cases which have been substantiated and are awaiting a final ruling by a Judge next month;
Ironically (and irrelevant to this subject of this article but worth mentioning as we discuss mounting legal costs to the District), legal bills also show fees accrued by the District for having the district attorneys review material published on Berkeley Heights Community Watch, and Letters to the Editor published by residents.
Does that last tidbit scare you or make you angry? It should. Why are lawyers being paid with money intended for your child’s education to sift through the bad press the BOE is worried about?
A feasible solution would be to have Melissa Varley, Pamela Stanley, Robert Cianciulli, et. al. repay the legal fees incurred for their PERSONAL use and gain by using the district attorney. Additionally, they should all step down as they are unfit to serve as representatives of our community.
For specifics regarding the findings of the GRC in the case mentioned above GRC Complaint No. 2020-110:
Specifically regarding the redaction (or blacking-out of information): The Council reasoned that such a method does not show the requestor the specific location of the redacted material or the volume of material redacted; thus, the specific location of the material underlying the redactions made was not visually obvious;
OPRA is a law to provide transparent access of governing bodies to the public. When OPRA documents are redacted the Records Custodian must include a reason why certain items are redacted – an overly broad reason such as “attorney-client privilege” does not suffice: The Complainant argued, and the GRC agrees, that these redactions were not done in a “visually obvious” manner, as required in Wolosky and its progeny. The Custodian’s method of redaction did not provide the Complainant with a clear indication of where and how much material were redacted in those records. Accordingly, the Custodian’s method of replacing redacted information with blank space for a portion of the provided records was not a “visually obvious method” showing “the specific location of any redacted material in the record” and is thus not appropriate under OPRA. N.J.S.A. 47:1A-5(g); Wolosky, GRC 2009-49; Scheeler, GRC 2015-91.
OPRA also provides that a “government record” shall not include “any record within the attorney-client privilege.” N.J.S.A. 47:1A-1.1 (emphasis added). To assert attorney-client privilege, a party must show that there was a confidential communication between lawyer and client in the course of that relationship and in professional confidence. N.J.R.E. 504(1). Such communications are only those “which the client either expressly made confidential or which [one] could reasonably assume under the circumstances would be understood by the attorney to be so intended.” State v. Schubert, 235 N.J. Super. 212, 221 (App. Div. 1989). However, merely showing that “the communication was from client to attorney does not suffice, but the circumstances indicating the intention of secrecy must appear.” Id. at 220-21;
Per district policy 0174, there are 5 persons who are authorized to request services or legal advice from the district lawyers: the Superintendent, the Business Administrator, the Superintendents designee, the Board President and a designee of the Board President. In most of the redacted entries, the Custodian redacted the identities of individuals who communicated with counsel via telephone or e-mail. The GRC has previously held that such information is insufficient to qualify as attorney-client privileged communication without providing more than a conclusory declaration of a stated exemption.
Attached are the MULTIPLE PAGES of redactions the GRC found improper – funded by money intended for our children’s education and again funded by even more money to defend.
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