Update: In an October 30, 2017 court order, Mercer County Assignment Judge Mary C. Jacobson reprimanded the Division of State Police for having a “pattern and practice of lengthy delays” of between 120 and 145 days in responding to Open Public Records Act (OPRA) requests. She ordered the Division to provide a certification to the court, the requestor’s attorney and the Superintendent of State Police “that explains the reasons for the delayed response [and] “describes the current resources and procedures the State Police has in place for managing OPRA requests, and outlines a plan to foster compliance with OPRA’s timelines in the future.” Judge Jacobson also ordered the Division to release overtime information on four troopers, provide properly redacted versions of the troopers’ final pay stubs and pay the attorney fees of CJ Griffin, the OPRA requestor’s lawyer.
On Thursday, October 26, 2017 at 2 p.m., Mercer County Assignment Judge Mary C. Jacobson will hear the case of Libertarians for Transparent Government (LFTG) v. New Jersey State Police, et al, Docket No. MER-L-1055-17. There are two matters at issue: 1) whether the amount of overtime pay a State Trooper receives must be disclosed to the public and 2) whether the court will require the State Police–an agency that routinely takes months to substantively respond to even routine Open Public Records Act (OPRA) requests–to generally honor OPRA’s seven business-day response period.
On the first issue, LFTG submitted a records request to the Division of State Police on December 20, 2016 seeking payroll records from 2015 for four specific State Troopers. In its request, LFTG requested “records that show the amount of overtime earned in 2015 by each of” the four Troopers. In its April 20, 2017 response, the Division sent LFTG payroll records for the four Troopers that were redacted to remove personal identifiers and overtime earnings. The Division’s suppression of overtime pay was based on state regulation N.J.A.C. 13:1E-3.2(a)(7) which exempts:
The duty assignment of an individual law enforcement officer or any personally identifiable information that may reveal or lead to information that may reveal such duty assignment, including, but not limited to, overtime data pertaining to an individual law enforcement officer.
LFTG’s lawyer, CJ Griffin of Hackensack, argued in her brief that since OPRA expressly permits access to payroll information, including the amount of overtime pay, the Department of Law and Public Safety lacks authority to create an administrative rule that exempts all overtime information. “A regulation passed by the Department of Law and Public Safety cannot trump what is expressly made available by statute and OPRA makes payroll records and overtime information available,” she wrote.
In its opposition paperwork, the Division submitted a Certification by Major Scott Ebner that stated in part:
Disclosure of overtime pay, overtime hours, and compensatory time for individual State Troopers will reveal the names of the State Troopers who have worked the largest amount of overtime. This information, when viewed in the aggregate, can be used to determine the duty assignments of the troopers at the top of the overtime lists. This link between overtime pay and duty assignment is possible because the highest earners of overtime pay more often than not are those troopers engaged in homeland security, executive protection and undercover assignments. Such knowledge, in turn, will assist terrorists and other wrong-doers who intend to cause harm to New Jersey or high level New Jersey officials.
The Division also pointed out in its opposition that in 2005 then Mercer County Assignment Judge Linda R. Feinberg upheld the Division’s denial of overtime records in the unpublished case of Newark Morning Ledger Co. v. Division of State Police of the New Jersey Department of Law and Public Safety. According to the Division’s brief, Feinberg’s “ruling was the catalyst for the New Jersey Department of Law and Public Safety to amend its regulation, N.J.A.C. 13:1E- 3.2(a)(7), to include a specific reference to “overtime data pertaining to an individual law enforcement officer.”
In her reply to the Division’s opposition, Griffin pointed out that the Appellate Division, in its 2015 unpublished decision in New Jersey Second Amendment Society v. Div. of State Police, cautioned the State Police “against the use of [N.J.A.C. 13:1E-3.2(a)(7)] to improperly deny public access to overtime information because that would clearly subvert the express language of OPRA.” Griffin also pointed out that the Division routinely publicizes its Troopers’ allegedly confidential duty assignments on social media. (Note: the Newark Morning Ledger and New Jersey Second Amendment Society cases are attached to the Division’s opposition brief as Exhibits D and E, respectively.)
On the second issue, Griffin’s brief pointed out that the State Police extended OPRA’s seven business-day response period nine separate times causing the Division to not substantively respond to LFTG’s request for payroll information on four employees until 121 days had elapsed. In order to show that this delay was not an isolated incident, Griffin submitted certifications from OPRA requestors Richard Rivera and Gavin Rozzi demonstrating that they each encountered long delays when requesting records from the Division. She also submitted a chart developed by LFTG showing that 150-day delays were typical. In opposition, the Division noted only that LFTG did not object to the extensions. In her reply, Griffin wrote that since the Division “has a pattern and practice of grossly violating OPRA’s statutory timelines . . . [t]he Court should therefore enter an Order compelling the State Police to comply with OPRA’s statutory timeframes in the future.”