Attorney Richard Gutman of Montclair and I appeared before Judge Nelson C. Johnson at 11 a.m. on July 22, 2014 in Atlantic City to argue the Open Public Record Act (OPRA) and common law right of access case of Paff v. Cape May County Prosecutor.  This is the case where I am seeking “Brady letters” that may have been issued regarding three Wildwood Crest police officials.  Background on the case and links to the filed case documents are on-line here.

Our main argument was that Cape May hadn’t submitted any evidence, in the form of affidavits or certifications, demonstrating that the records we sought were not subject to disclosure.  Under OPRA, the burden of proof is on the government to show that a record is not subject to disclosure.

Our secondary argument was that even if the court accepted Cape May’s brief as “evidence,” it was so tentatively and uncertainly written that it didn’t adequately explain why access to the documents should be denied.

Judge Johnson agreed with our characterization of the County’s responsive brief. He even remarked that he was astonished at how mealy-mouthed the response was and used following sentence from the brief–full of “mays” and “mights”–as an example of its indecisiveness:

Similarly, any such responsive documents which may exist might be the result of an investigation of matters by the CMCPO for a determination of criminal wrongdoing and may include the CMCPO’s findings and analysis thereof.

When the County’s attorney, James B. Arsenault, presented his argument it became obvious that Prosecutor Taylor wanted him not to reveal much, if anything, about the nature of the withheld documents.  He remarked that “law enforcement records need to be held close to the vest.”

Mr. Arsenault then produced a one-page document which he referred to as a “Vaughn Index” (on-line here) and gave it to Judge Johnson with a copy to Mr. Gutman.  Typically, such documents are submitted to the court and one’s adversary well prior to the hearing so that everyone has time to review them.  This is the first time I’ve ever seen such a document being presented during the hearing.

Cape May’s “Vaughn Index” indicated that the there were eight pages of responsive documents consisting of four letters written by the Prosecutor’s Office to Wildwood Crest Mayor Carl Groon.  The letters concerned “Investigation of Captain Dave Mayer” and “Investigation of Lieutenant Michael Hawthorne.”  The “Vaughn Index” did not describe the nature or content of the letters.  Judge Johnson wondered aloud whether the withheld letters were even responsive to my request for “Brady letters.”

Mr. Arsenault then produced a sealed envelope containing unredacted copies of the four letters and requested Judge Johnson to privately read them (i.e. review the in camera) and then make a decision on whether or not they should be released to me.  Mr. Gutman argued that giving the judge the letters for his private review without describing the letters’ nature and content to me was unfair because it prevented me from being able to effectively argue why the letters should not be suppressed.

Judge Johnson said that while he agreed with Mr. Gutman, he still felt that he needed to read the letters privately to determine whether they should be disclosed to me in full or redacted form.  He promised a prompt decision in this case.  Once I receive Judge Johnson’s decision, I will post it on this blog.

Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project. Please send all comments to [email protected]