Even though I ultimately received the records that the plaintiff’s attorney sought to have sealed, public access to those records was delayed for about a month. I advocate not only for access to non-exempt government records but for prompt access to those records. Accordingly, I have brought my concerns regarding how access to these court records was improperly delayed to both Judge Thornton and the public by way of this open letter.
November 29, 2017
Dear Judge Thornton:
Thank you for permitting me to appear before the court telephonically on November 17, 2017 to argue against the plaintiff’s motion to seal the court record. I have had a chance to review the documents that your office sent me yesterday and would like to bring to the court’s attention a rule violation that I believe worked to impermissibly deprive the public of information about the captioned matter for over fifteen months.
The rule at issue is a July 1, 2010 amendment to R.1:38-11 that added the following paragraph (d):
Documents or other materials not exempt from public access under Rule 1:38 may not be filed under seal absent a prior court order mandating the sealing of such documents, and should not be submitted to the court with the motion, which may be filed on short notice, requesting an order to seal.
The amended rule establishes that a normally non-exempt record, such a civil complaint, may not be filed under seal unless a prior court order that seals the record has already been entered. Thus, if plaintiff’s lawyer, Mr. Cushane, wished for his client’s complaint to be sealed, he ought to have first filed a motion that set forth the “good cause” requirements of R.1:38-11. Then, if the motion was granted, he could have filed his client’s complaint under an assurance that it would remain under seal unless and until an order to unseal it was entered. If the motion to seal was denied, Mr. Cushane and his client could elect either to proceed publicly or abandon the lawsuit, depending on the level of importance they assigned to the client’s privacy.
What Mr. Cushane did, however, was file both the amended complaint and the motion to seal simultaneously on August 16, 2016. (Note: The original complaint, filed on August 4, 2016, was correctly rejected by the Court because it impermissibly identified the adult plaintiff by his initials rather than his full name.) Then, the motion to seal remained pending for more than sixteen months until it was finally adjudicated on November 17, 2017.
Mr. Cushane’s motion filing, which violated the rule’s admonition (i.e. “[records for which sealing is sought] should not be submitted to the court with the motion”), also had the unfortunate effect of being treated by the Monmouth County Prosecutor’s Office (MCPO) as the equivalent of a sealing order.
On October 23, 2017, my non-profit organization submitted an Open Public Records Act (OPRA) request to the MCPO for records that were filed in this case. Even though no sealing order had yet been entered, Jennifer Lipp, the MCPO’s records custodian, denied the OPRA request on the strength of Mr. Cushane’s pending motion. In her October 23, 2017 e-mail, she wrote: “I have a duty to protect people’s privacy interests including medical, mental health, substance addiction, domestic violence, among other privacy interests. The motion is pending. Unless Judge Thornton tells the lawyers involved that she is not going to seal the record, I am not going to release them. Knowing there is a pending motion before the Assignment Judge could also be an ethical violation for me. Once Judge Thornton rules, I will let you know.”
In other words, Ms. Lipp treated the pending motion as a fait accompli even though it had not yet been adjudicated. Had Mr. Cushane abided by R.1:38-11(d), the sealing motion would have been determined shortly after the August 2016 filing and Ms. Lipp’s grant or denial of the OPRA request would have been dictated by the court’s decision to grant or deny that motion.
At this point, I seek no remedy because, even though my access to these records was delayed for about a month I have now received them. I write only to inform the court of the denials and delays that the public faces when R.1:38-11 is disobeyed. I ask that the court keep my concerns in mind going forward.
Very truly yours,
cc. Thomas Cushane and Jennifer Lipp