On October 26, 2016, Mercer County Assignment Judge Mary C. Jacobson ordered the City of Trenton to give an Edison man a copy of a memo that the City claimed was “deliberative” because it gave advice and recommendations on the City’s then yet to be adopted social media policy. Judge Jacobson also ordered City taxpayers to pay the man’s legal fees for bringing his Open Public Records Act (OPRA) lawsuit.
The case, Lord v. City of Trenton, et al, Docket No. MER-L-1582-16, was filed after Richard Lord of Edison learned that comments that he posted on the Trenton Police Department’s Facebook page had been deleted and that he was blocked or banned from further posting on the page. Lord said that his comments were critical of the Department’s arrest of Ed “Weed Man” Forchion.
After learning that he had been blocked or banned from the page, Lord submitted an OPRA request to City Clerk Richard M. Kachmar for a list of all users who had similarly been removed. In response, Trenton released a list of blocked users but Lord was not on that list even though he was still blocked from the page.
On June 10, 2016, the Trentonian newspaper reported that the police department’s Facebook page had been deactivated in accordance with a memo sent to the department by Kachmar. (The Department later reactivated its page.) In the article, Kachmar was quoted as saying that the memo was “internal” and that it was not a public record. Kachmar’s comments prompted Lord, through his lawyers Walter M. Luers and Raymond M. Baldino of Clinton, to submit another OPRA request for the memo as well as a complete list of blocked or banned users that contained Lord’s user name. In a series of confusing responses, the City ultimately denied access to Kachmar’s memo and never directly responded to Lord’s request for the updated banned/blocked user list.
In its response to Lord’s lawsuit, the City claimed that the memo was exempt as “advisory, consultative or deliberative material” because it gave “advice and recommendations” regarding the police department’s social media policy that had “not yet been fully developed or adopted.” Regarding the banned/blocked user list, the City claimed that uncertainty regarding the difference between a “banned” user and a “blocked” user justified its mishandling of Lord’s request for the list. In a filed certification, Trenton Detective Alexis Durlacher said that she released a complete banned/blocked list to Lord on September 15, 2016 and that she unblocked each user on that list.
In her October 26, 2016 Order, Judge Jacobson found that Lord’s lawsuit was the “catalyst” for the City’s tardy production of the banned/blocked list. This made Lord the OPRA lawsuit’s “prevailing party” and entitled him to recover from City taxpayers his attorney fees and costs of court. The judge also viewed Kachmar’s memo in camera and found that it was not exempt from disclosure. She ordered Trenton to either disclose the memo or appeal her ruling by Friday, November 4, 2016.