Dec 122013
 

A New Jersey appeals court has held that an attorney, representing a client whose husband committed suicide while in prison, is not entitled to “wide latitude in Open Public Records Act requests for information about county jail procedures and security.”

Further, because attorney Donald Burke did not fully succeed on his document request, his “$52,275 fee request” was reduced to $4,500. The court said, “An OPRA request is not the equivalent of lawsuit discovery.”

Burke is representing Kenneth Conforti’s widow, Carol Ann, and their 12-year-old Down syndrome, deaf son, in a suit against Ocean County.  Conforti was an alcoholic with a deteriorating marriage.  He was arrested on September 8, 2010 for violating a restraining order.  He was released a week later, but was arrested again on October 13, 2010 for burglary.

While in county jail, Conforti asked for medical help for severe back pain but was told “to take over-the-counter medication.”  On October 20, 2010 he was found dead in his cell, “having hanged himself with a bedsheet.”

The county is accused of wrongful death, deliberate indifference, violations of state and federal civil rights statutes and negligence.

Burke filed several OPRA requests with the county in January 2011.  Many were denied because they involved “psychiatric or psychological records that are exempt under OPRA or Gov. James McGreevey’s Executive Order 26.”  Others were denied because they involved security measures and surveillance techniques.

In March 2011, Burke sued the county to compel document production, naming himself as plaintiff.  Superior Court Judge Vincent Grasso entered three orders compelling the county to release the documents.  Eventually, the county produced “hundreds of pages of documents” it had previously withheld.

Grasso reduced Burke’s fee application because many of his OPRA requests were too broad or lacked specificity to be proper.  Grasso said, “Many of the requests were deficient in both form and substance.” Thus, Burke could not be considered a prevailing party.

On appeal, the panel of three judges arrived at the same conclusion.  “Many of the requests sought broad categories of information, rather than specific documents,” the judges said. “They more closely resembled lawsuit discovery demands rather than OPRA requests.”

Burke did not agree with the decision reached by either court. “The trial court sought to justify this reduction by ruling for the first time that [the] OPRA request was deficient, a claim it had earlier rejected by virtue of the multiple orders it entered compelling the County to produce records plaintiff sought,” he said.

“The Appellate Division upheld this illogical reasoning and in doing so failed to give due deference to the fee-shifting provision of OPRA, which, as with other civil rights statutes, is necessary to level the playing field in cases like this where a destitute widow takes on a governmental entity with vast resources.”