On Wednesday, August 27, 2014 at 9 a.m., the Hon. Travis L . Francis, A.J.S.C. will hear argument in my Open Public Records Act (OPRA) case against the City of Perth Amboy (Middlesex County).  My civil complaint, exhibits and brief, filed by Walter M. Luers, Esq. of Clinton, are are on-line here.

I am seeking records regarding a lawsuit that a Perth Amboy teacher filed against the school district for mishandling her report that she was sexually assaulted in her classroom by another teacher.  That lawsuit, which settled for $199,000, is discussed on my blog here.

I submitted an OPRA request to Perth Amboy City Clerk Elaine M. Jasko for the police incident reports regarding the alleged assault as well as any criminal complaints that were filed against the alleged perpetrator.  I made this request to learn when, if ever, the alleged sexual assault was reported to the Perth Amboy Police Department and what, if anything, the Police Department did about it.

Perth Amboy denied my request for the police reports claiming they were "criminal investigatory records." As for the complaints, police officials claimed that they "do not fall under OPRA.  They have to be requested through the courts."  When I challenged that assertion, the Police Chief conceded that no criminal complaints existed.

Our brief to Judge Francis cites N.J.S.A. 47:1A-3, which contains an exception to the "criminal investigatory records" exemption.  Under OPRA, "where a crime has been reported but no arrest yet made, information as to the type of crime, time, location and type of weapon, if any" shall be available to the public "within 24 hours or as soon as practicable."  So, if the alleged sexual assault was reported to the police, the public is at least entitled to know that a report was made.  This knowledge might cause Perth Amboy residents and taxpayers to ask questions such as: Why did the Perth Amboy school district pay $199,000 when the police, who apparently investigated the alleged sexual assault, did not find enough evidence to warrant filing a criminal complaint?

Our brief also cites the common law right of access which, apart from OPRA, requires disclosure of records when the public's interest in disclosure exceeds the government's need for confidentiality.  Here, the teacher's allegations were never tried before a jury, so we really don't know whether or not they're true.  All we know is that the school board paid the teacher a substantial sum of money and inserted a confidentiality clause that prevents both the teacher and Board from talking about the settlement.  But, as Mr. Luers writes in our brief

the public, including both the taxpayers in Perth Amboy and the taxpayers of New Jersey deserve additional details about this incident (beyond mere allegations) so that they can take action, such as making additional OPRA requests; attending Perth Amboy Board of Education meetings and making comments on the results of the litigation; running for office or supporting others who run for office based on the results of the LAD litigation; questioning the Board's practices regarding reports of criminal activity; and other actions.

In its response to my lawsuit, Perth Amboy proffered a certification by Police Lieutenant Denise Sosulski that conceded that the City does possess "one (1) incident report dated February 24, 2010 regarding an assault that allegedly took place at 8:30 a.m. on February 22, 2010 at the Wilentz School."  Sosulski goes on to state that after the initial report was taken, the matter was transferred over to the Middlesex County Prosecutor's Office and that the Perth Amboy Police had no further involvement in the matter. 

Why didn't Perth Amboy simply tell me this at the outset?  Had the City done so, I would have directed another OPRA request to the Prosecutor's office.  And, if the police report is as innocuous as Sosulski implies, why didn't Perth Amboy just give it to me in recognition of my right, at least under the common law right of access, to disclosure?  Had Perth Amboy not been so stingy with information about this matter, this lawsuit would have probably been avoided.