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OPRA NJ Open Public Records Act

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Old 11-09-2017, 05:43 PM
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East Orange Clerk ordered to pay $1,000 penalty for knowingly and willfully violating

In an October 31, 2017 order, the Government Records Council (GRC) ordered former East Orange City Clerk Dwight Mitchell to "pay a civil penalty in the amount of one thousand dollars" for knowingly, willfully and unreasonably violating a woman's rights under the Open Public Records Act (OPRA).

The penalty arose out of records denial complaint that Katalin Gordon filed with the GRC against the City. In June 2013, Gordon requested disability insurance payments received by Clerk Mitchell between June 1, 2010 and June 25, 2013 and all sick days accumulated by him during the same period. In a September 30, 2014 order, the GRC determined that even though the City's denial of Gordon's request was improper, it "did not rise to the level of a knowing and willful violation of OPRA" even though Mitchell had "failed to respond to the Complainantís OPRA request in a timely manner, failed to provide a specific legal basis for denying the requested records, and failed to prove that the denial of access to the requested records was authorized by law."

Gordon appealed and a two-judge Appellate Division panel, in a June 23, 2017 unpublished opinion, found that there was "insufficient evidence in the record to support [the GRC's] finding that the City's denial of Gordon's OPRA request was not willful and deliberate." The panel found that the City wrongly denied Gordon's request by claiming there was on-going and pending litigation with Mitchell. When confronted with the fact that no such litigation existed, the court said that the City "unconvincingly" explained that it mistakenly characterized an investigation into Mitchell as litigation. The court found that even if there was an investigation, the City offered nothing to prove that release of the records Gordon sought would be "inimical to the public interest." After finding that the payroll records Gordon sought were clearly disclosable and after noting that the City made "meritless claims" that Gordon's OPRA request was "too broad" and that the information she sought was not maintained electronically, the two-judge panel reversed the GRC's September 30, 2014 order and remanded the matter to the GRC "for further proceedings regarding the imposition of appropriate penalties in accordance with OPRA." The GRC's October 31, 2017 Order arose out of that remand.

Clerk Mitchell was given five days to pay the fine. According to the City's website, Mitchell no longer serves as Clerk.

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