32

Bruce Kowal

177 Avenue B

Bayonne, NJ

Telephone: 201-232-2538

June 28, 2010

VIA HAND DELIVERY

County Clerk of the Superior Court

Civil and General Equity Parts

Administration Building, Rm G-9

595 Newark Avenue, Jersey City 07306

Re: BRUCE KOWAL v. CITY OF BAYONNE and ROBERT SLOAN, CITY CLERK OF

THE CITY OF BAYONNE in his official capacity as CITY CLERK OF THE CITY OF

BAYONNE

Dear Sir or Madam:

I am representing myself, Pro Se, in this action and, on my behalf, enclose for filing

the following documents: (1) Original and two copies of Verified Complaint and Case

Information Statement; (2) filing fee of $230; (3) original Letter Brief; and (4) three copies of

Order to Show Cause.

Because this matter alleges a violation of the Open Public Records Act, I respectfully request

that this matter be assigned to a Judge with experience is Track I, Type 802 cases.

If you have any questions, kindly contact me.

Respectfully submitted,

Bruce Kowal, Pro Se

Appendix XII-B1

FOR USE BY CLERK’S OFFICE ONLY!

PAYMENT TYPE: CK CG CA

CHG/CK NO.

AMOUNT:

OVERPAYMENT:

BATCH NUMBER:

"#$#%!"&'(!#)*+,-&.#+)!'.&.(-().!(CIS)

Use for initial Law Division Civil Part pleadings (not motions) under Rule 4:5-1

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>9!2<<>951NOL!L4652<@91!4L!5><!2==4P13

ATTORNEY / PRO SE NAME TELEPHONE NUMBER COUNTY OF VENUE

FIRM NAME (if applicable) DOCKET NUMBER (when available)

OFFICE ADDRESS DOCUMENT TYPE

JURY DEMAND YES NO

NAME OF PARTY (e.g., John Doe, Plaintiff) CAPTION

CASE TYPE NUMBER (See reverse side for listing) IS THIS A PROFESSIONAL MALPRACTICE CASE? YES NO

IF YOU HAVE CHECKED “YES,” SEE N.J.S.A. 2A:53 A -27 AND APPLICABLE CASE LAW

REGARDING YOUR OBLIGATION TO FILE AN AFFIDAVIT OF MERIT.

RELATED CASES PENDING? IF YES, LIST DOCKET NUMBERS

YES NO

NAME OF DEFENDANT’S PRIMARY INSURANCE COMPANY (if known) DO YOU ANTICIPATE ADDING ANY PARTIES (arising out of same transaction or occurrence)? NONE

YES NO

UNKNOWN

.Q(!#)*+,-&.#+)!/,+$#R(R!+)!.Q#'!*+,-!"&))+.!S(!#).,+RT"(R!#).+!($#R()"(U!

CASE CHARACTERISTICS FOR PURPOSES OF DETERMINING IF CASE IS APPROPRIATE FOR MEDIATION

IF YES, IS THAT RELATIONSHIP: DO PARTIES HAVE A CURRENT, PAST OR

RECURRENT RELATIONSHIP? EMPLOYER/EMPLOYEE FRIEND/NEIGHBOR OTHER (explain) YES NO FAMILIAL BUSINESS

DOES THE STATUTE GOVERNING THIS CASE PROVIDE FOR PAYMENT OF FEES BY THE LOSING PARTY? YES NO

USE THIS SPACE TO ALERT THE COURT TO ANY SPECIAL CASE CHARACTERISTICS THAT MAY WARRANT INDIVIDUAL MANAGEMENT OR

ACCELERATED DISPOSITION

DO YOU OR YOUR CLIENT NEED ANY DISABILITY ACCOMMODATIONS? IF YES, PLEASE IDENTIFY THE REQUESTED ACCOMMODATION

YES NO

WILL AN INTERPRETER BE NEEDED? IF YES, FOR WHAT LANGUAGE?

YES NO

#!;19<4=N!<J2<!;>5=4315<420!M19L>520!4315<4=419L!J2I1!8115!9132;<13!=9>H!3>;@H15<L!5>7!L@8H4<<13!<>!<J1!;>@9<?!253!7400!81!9132;<13!=9>H!200!3>;@H15<L!L@8H4<<13!45!<J1!=@<@91!45!2;;>9325;1!74<J!Rule!ABVWDXF8GU

ATTORNEY SIGNATURE:!

Effective 04/01/2010, CN 10517-English page 1 of 2

!

BRUCE D. KOWAL 201-232-2538 Hudson

BRUCE D. KOWAL, PLAINTIFF BRUCE D. KOWAL V. CITY OF BAYONNE, DEFENDANT

802

According to N.J.S.A. 47:1A-6, this lawsuit should be assigned to the designated OPRA judge. Furthermore, the lawsuit "shall proceed in a summary or expedited manner."

!

!

!

!

!

!

!"#$%&%

CIVIL CASE INFORMATION STATEMENT (CIS)

Use for initial pleadings (not motions) under Rule 4:5-1

'(!)%*+,)!%(Choose one and enter number of case type in appropriate space on the reverse side.)

*-./0%1%%2%%345%#.678%#"7/9:$-6% 151 NAME CHANGE 175 FORFEITURE 302 TENANCY 399 REAL PROPERTY (other than Tenancy, Contract, Condemnation, Complex Commercial or Construction) 502 BOOK ACCOUNT (debt collection matters only) 505 OTHER INSURANCE CLAIM (INCLUDING DECLARATORY JUDGMENT ACTIONS) 506 PIP COVERAGE 510 UM or UIM CLAIM 511 ACTION ON NEGOTIABLE INSTRUMENT 512 LEMON LAW 801 SUMMARY ACTION 802 OPEN PUBLIC RECORDS ACT (SUMMARY ACTION) 999 OTHER (Briefly describe nature of action)

*-./0%11%%2%%;55%#.678%#"7/9:$-6% 305 CONSTRUCTION 509 EMPLOYMENT (other than CEPA or LAD) 599 CONTRACT/COMMERCIAL TRANSACTION 603 AUTO NEGLIGENCE – PERSONAL INJURY 605 PERSONAL INJURY 610 AUTO NEGLIGENCE – PROPERTY DAMAGE 699 TORT – OTHER

*-./0%111%%2%%<45%#.678%#"7/9:$-6% 005 CIVIL RIGHTS 301 CONDEMNATION 602 ASSAULT AND BATTERY 604 MEDICAL MALPRACTICE 606 PRODUCT LIABILITY 607 PROFESSIONAL MALPRACTICE 608 TOXIC TORT 609 DEFAMATION 616 WHISTLEBLOWER / CONSCIENTIOUS EMPLOYEE PROTECTION ACT (CEPA) CASES 617 INVERSE CONDEMNATION 618 LAW AGAINST DISCRIMINATION (LAD) CASES

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% '$@>-.EE6%?.@.A$#%H">"A.>"9@%I*-./0%1=J% 280 Zelnorm 285 Stryker Trident Hip Implants 288 Prudential Tort Litigation

% ?.77%*9->%I*-./0%1=J% 248 CIBA GEIGY 281 BRISTOL-MYERS SQUIBB ENVIRONMENTAL 266 HORMONE REPLACEMENT THERAPY (HRT) 282 FOSAMAX 271 ACCUTANE 283 DIGITEK 272 BEXTRA/CELEBREX 284 NUVARING 274 RISPERDAL/SEROQUEL/ZYPREXA 286 LEVAQUIN 275 ORTHO EVRA 287 YAZ/YASMIN/OCELLA 277 MAHWAH TOXIC DUMP SITE 601 ASBESTOS 278 ZOMETA/AREDIA 619 VIOXX 279 GADOLINIUM

1K%69D%C$E"$:$%>L"7%/.7$%-$MD"-$7%.%>-./0%9>L$-%>L.@%>L.>%N-9:"#$#%.C9:$O%NE$.7$%"@#"/.>$%>L$%-$.79@%9@%!"#$%3O%"@%>L$%7N./$%D@#$-%P'.7$%'L.-./>$-"7>"/7Q

Please check off each applicable category

Verbal Threshold Putative Class Action Title 59

Effective 04/01/2010, CN 10517-English page 2 of 2

Bruce D. Kowal177 Avenue BBayonne, NJ 07002Tel:201-232-2538Fax: 888-477-0060brucekowal@me.comPlaintiff, pro se

___________________________

_________________________

VERIFIED COMPLAINT

Plaintiff Bruce D. Kowal, by way of complaint against the

Defendants City of Bayonne, City Clerk of the City of Bayonne

states as follows:

Preliminary Statement

1. This is an action under the Open Public Records Act

(“OPRA”), N.J.S.A. 47:1A-6, and the common law right of access

to records, challenging the City of Bayonne’s denial of access

SUPERIOR COURT OF NEW JERSEYLAW DIVISION, CIVIL PARTHUDSON COUNTY

DOCKET NO.

Civil Action

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BRUCE D. KOWAL, Plaintiff,

vs.

CITY OF BAYONNE and ROBERT SLOAN, CITY CLERK OF THE CITY OF BAYONNE in his professional capacity as CITY CLERK OF THE CITY OF BAYONNE, Defendants

2

to an incident report of the Bayonne Police Department, and its

failure to give any written reason for that denial of access.

Parties

2. Plaintiff Bruce D. Kowal is an individual residing at

177 Avenue B, Bayonne, New Jersey, 07002.

3. Defendant City of Bayonne, located in Hudson County, is

a political subdivision of the State of New Jersey.

4. Defendant ROBERT SLOAN is the City Clerk of the City of

Bayonne is the Records Custodian for the City of Bayonne and is

sued only in his official capacity.

General Allegations

5. On August 2, 2008 officers from the Bayonne Police

Department investigated a vehicle belonging to Theodore

Connolly, who at the time was a Member of the Municipal Council.

Mr. Connolly was asleep in the vehicle shortly after midnight.

A police incident report was filed, and is specifically

mentioned by a reporter for the Star-Ledger [See Appendix A-16].

The report noted that the incident report, procured under OPRA,

was “heavily redacted.”

6. On May 6, 2010, the Plaintiff, Bruce D. Kowal,

requested a copy of the incident report which was referenced in

the Star-Ledger article. [Appendix, A-1]

3

7. On May 27, 2010, with no response from Mr. Sloan, the

City Clerk and records custodian, Plaintiff wrote to him, again

requesting the incident report.[Appendix, A-11]

8. On May 28, 2010, Mr. Sloan replied by fax, and stated

that the request was in the possession of the Bayonne Police

Department, and that the Corporation Counsel was in possession

of the request. [Appendix, A-15]

9. One June 16, 2010 the Corporation Counsel provided a

heavily redacted copy of the incident report, citing the

privacy clause of N.J.S.A. 47:1A-1 as a basis for the

redactions. [Appendix, A-18].

10. On June 21, 2010 the Plaintiff requested that the City

of Bayonne provide explanations for the redactions are provided

for in N.J.S.A. 47:1A-5.g and also under the common law.

[Appendix, A-20]

11. The forty-five day statute of limitations under Rule

4:69-6(a) commences with the effective date of denial, which is

this case was May 17, 2010. With less than two weeks remaining

on the statute, and no response from the Corporation Counsel to

Plaintiff’s letter dated June 21, the Plaintiff had no choice

but to file this Complaint in order to protect his rights under

the Rule, supra

4

First Count

(Improperly Explained Redactions)

12. Plaintiff realleges paragraphs 1 through 11, above.

13. The Corporation Counsel, acting for the Defendant

Custodian, has provided an explanation which consists solely of

an incomplete verbatim citation of one clause of N.J.S.A.

47:1A-1, which is commonly known as the “privacy clause.” The

citation omits the second clause, which sternly advises that

“. . . nothing contained in P.L.1963, c.73 (C.47:1A-1 et seq.),

as amended and supplemented, shall be construed as affecting in

any way the common law right of access to any record, including

but not limited to criminal investigatory records of a law

enforcement agency.” The Corporation Counsel omitted the

Plaintiff’s right under the common law to the records sought.

14. The OPRA, specifically N.J.S.A. 47:1A-5(g), requires

Defendant Custodian, when he is “unable to comply with a request

for access,” to “indicate [in writing] the specific basis” for

his inability to comply and to inform the record requestor of

that “specific basis.”

15. The explanation set forth, an incomplete citation of

the privacy clause (paragraph #13, above), without more,

violates the OPRA because it does not satisfy Defendant

Custodian’s duty to produce specific reliable evidence

5

sufficient to meet a statutorily recognized basis for

confidentiality. (See Courier News v. Hunterdon County

Prosecutor’s Office, 358 N.J. Super. 373, 382-83(App. Div.

2003).

16. The explanation set forth, an incomplete citation of

the privacy clause (paragraph #13, above,) without more,

violates the OPRA because it does not satisfy Defendant

Custodian’s duty to explain the redaction in a manner enabling

the requestor to assess the applicability of the privilege or

protection. (See Paff v. New Jersey Department of Labor, Board

of Review, 379 N.J. Super. 346, 354-55 (App. Div. 2005).)

WHEREFORE, Plaintiff demands judgment against Defendants City of

Bayonne and City Clerk as follows:

A. Declaring that the City of Bayonne and the City Clerk

violated OPRA, more specifically N.J.S.A. 47:1A-5g, by not

providing a more specific and detailed justification for the

redactions applied to the police incident report attached as

Appendix, A-19;

B. Ordering the City to provide Plaintiff with more

specific and detailed justifications for the redactions applied

to the police incident report, attached as Appendix, A-19;

6

C. Enjoining Defendant Custodian, going forward, from

suppressing a government record, in whole or part, unless he

provides the requestor with a written explanation that conforms

to the requirements set forth in Courier News v Hunterdon County

Prosecutor’s Office , supra and Paff v. New Jersey Department of

Labor, Board of Review., supra;

D. Imposing a civil penalty of $1,000.00 upon the City

Clerk;

E. Awarding his costs of suit; and

F. For such other relief as the Court deems equitable and

just.

Second Count

(Denial of Common Law Access)

17. Plaintiff realleges paragraphs 1 through 11, above.

18. The Requested Document is a public record under common

law.

19. Plaintiff has an interest in the subject matter of the

requested Document by virtue of his concerns for the integrity

of the police department and the equal application of law to all

residents of Bayonne.

20. The City of Bayonne and City Clerk’s failure to

provide Plaintiff an unredacted copy of the August 2, 2008

7

incident report violated the common law right of access to

public records.

WHEREFORE, Plaintiff demands judgment against Defendants

City of Bayonne and City Clerk as follows:

A. Declaring that the City of Bayonne and the City Clerk

violated the common law right of access to public records by

refusing to provide access to the unredacted portions of the

requested records;

B. Enjoining the City of Bayonne and the City Clerk from

failing to provide Plaintiff with the requested records in

unredacted form, and from failing to provide specific reasons,

on a fact-by-fact basis why each item of information or fact

contained therein was protected, or not protected, from

disclosure;

C. Awarding costs; and

E. For such other relief as the Court deems equitable and

just.

Respectfully submitted,

_______________________

Bruce D. Kowal

June 28, 2010

8

Certification Pursuant to R. 4:5-1(b)

The Plaintiff certifies that the matter in controversy is not

the subject of any other action pending in any court or

arbitration proceeding and that he is not contemplating any

other action or arbitration proceeding regarding the subject

matter of this action. Plaintiff is not aware of any other

party that should be joined in this action.

Respectfully submitted

___________________

Bruce D. Kowal, pro se

__________________ Date

9

VERIFICATION

1. I am the plaintiff in this lawsuit

2. I have personal knowledge of the facts alleged in the

Verified Complaint and Brief in this matter.

3. The factual allegations of the Verified Complaint and Brief

are true.

4. All documents attached to the Verified Complaint and Brief

are true copies and have not been redacted, changed, modified,

adjusted or otherwise altered in any manner.

I certify that the foregoing statements made by me are true. I

am aware that if any of the foregoing statements made by me are

willfully false, I am subject to punishment.

____________________________

Bruce D. Kowal

Dated:

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June 28, 2010

LETTER BRIEF IN SUPPORT OF ORDER TO SHOW CAUSE

The Honorable ________, _.J.S.C.Superior Court of New JerseyBrennan Courthouse583 Newark AvenueJersey City, NJ 07306

Dear Judge _________:

This letter in lieu of formal brief is submitted on behalf

of Plaintiff Bruce Kowal, pro se, in support of his request for

an order to show cause.

Statement of Facts

This complaint concerns an Open Public Records Act (“OPRA”)

N.J.S.A. 47:1a-1 to 11, and common law request that Plaintiff

RE: Bruce Kowal, Plaintiff,

v.

City of Bayonne, Robert Sloan, City Clerk of the City of Bayonne in his professional capacity as City Clerk of the City of Bayonne, Defendants.

Docket No.

Civil Action

11

sent to the Records Custodian of the City of Bayonne on May 6,

2010. [Appendix A-1]. Plaintiff requested the following

records:

The police incident report of August 2, 2008 of the Bayonne

Police Department with respect to Theodore Connolly, First Ward

Councilman, Bayonne Municipal Council. The incident was widely

reported in the local press, and a copy of an article from the

Star-Ledger is attached. [Appendix A-16].

The seven business day timeframe expired on May 17, 2010,

which triggered the 45 day statutory period within which a

Plaintiff may file a complaint. Rule 4:69-6(a).

On May 27, 2010 twenty-one days after filing his request,

Plaintiff sent a letter by fax to the City Clerk’s office to

inquire about the disposition of Plaintiff’s request. [Appendix

A-11]. The Plaintiff was informed by letter from Mr. Sloan, the

Records Custodian, that the request had been provided to

Charles M. D’Amico, Esq., the Corporation Counsel, for review,

and that a timetable for response would be provided. [Appendix

A-15]

Whether D’Amico reviews all OPRA requests and the City’s

responses, or just selected requests is not clear. However,

while it is reasonable for the City Clerk to seek legal advice

on how to appropriately respond to Plaintiff’s request, his

12

decision to seek legal advice does not, by itself, constitute a

lawful reason for delaying his response beyond the seven

business day period prescribed by N.J.S.A. 47:1A-5(i). See Paff

v. Bergen County, GRC Complaint No. 2005-115. As noted above,

the City had statutorily denied Plaintiff’s request on May 17,

2010.

Defendant, through Mr. D’Amico, replied by First Class mail

on June 16, 2010. Plaintiff received the reply on June 18,

which afforded the Plaintiff barely two weeks to file a

complaint under Rule 4:69-6, the forty-five day period wherein

to file an action in lieu of prerogative writ.

Mr. D’Amico’s reply consisted of a broad assertion of

personal privacy over large portions of the incident report

[Appendix, A-18] by citing partial language of OPRA: “a public

agency has a responsibility and an obligation to safeguard from

public access a citizen's personal information with which it has

been entrusted when disclosure thereof would violate the

citizen's reasonable expectation of privacy”; N.J.S.A 47:1A-1.

There was no explanation of the redactions, pursuant to N.J.S.A.

47:1A-5g

Accordingly, the Defendant has wrongfully withheld records

and documents under OPRA, in violation of OPRA and the common

13

law right to know doctrine. Under these circumstances, the

plaintiff is entitled to the entry of an Order to Show Cause,

the production of the requested documents, and reasonable fees

and costs.

ARGUMENT

As the Court knows, the Open Public Records Act (“OPRA”)

mandates that “government records shall be readily accessible

for inspection, copying, or examination by the citizens of this

State, with certain exceptions, for the protection of the public

interest, and any limitations on the right of access accorded

[under OPRA] as amended and supplemented, shall be construed in

favor of the public’s right of access.” Libertarian Party of

Cent. New Jersey v. Murphy, 384 N.J. Super. 136, 139 (App. Div.

2006) (citing N.J.S.A. 47:1A-1). “The purpose of OPRA ‘is to

maximize public knowledge about public affairs in order to

ensure an informed citizenry and to minimize the evils inherent

in a secluded process.’” Times of Trenton Publ’g Corp. v.

Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519, 535 (2005)

(quoting Asbury Park Press v. Ocean County Prosecutor’s Office,

374 N.J. Super. 312, 329 (Law Div. 2004).

The City of Bayonne denied Plaintiff access to the redacted

portions of the police incident report on the grounds that “a

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public agency has a responsibility and an obligation to

safeguard from public access a citizen's personal information

with which it has been entrusted when disclosure thereof would

violate the citizen's reasonable expectation of privacy;

[Appendix, A-18]”. The Corporation Counsel is citing the

“privacy clause” of N.J.S.A 47:1A-1 Legislative Findings etc.

Notably, though, he has omitted the concluding clause which

provides for Plaintiff’s common law right of access: “and

nothing contained in P.L.1963, c.73 (C.47:1A-1 et seq.), as

amended and supplemented, shall be construed as affecting in any

way the common law right of access to any record, including but

not limited to criminal investigatory records of a law

enforcement agency.”

The City has claimed only an exemption under OPRA, while

claiming no such exemption under the Common Law. Plaintiff’s

OPRA request of May 6, 2010 specifically claimed a common law

right to access on the attached model OPRA request. [Appendix

A-8]

The City has not provided an explanation for the redactions

of almost 90% of the written narrative. In the “Handbook for

Records Custodians” [Third Edition, October 2009]the Government

Records Council devotes particular attention to explaining the

plain language of N.J.S.A. 47:1A-5.g:

15

“Explaining Why a Redaction is Made. When redactions are made to a record, the custodian can use either the request form to explain why those elements of a record are redacted, or use a separate document, depending on the circumstances, but also referring to the OPRA exception being claimed. This principle also applies if pages of information are redacted. Sometimes it is clear from inspection (entry called "Social Security Number" has a black out over where the number would appear). The bottom line is that the requestor has a right to know the reason for the redaction, and the custodian has the responsibility to provide an explanation.” [supra, p. 15].

The Courts have never upheld a broad conclusory exemption

without identification of the type of information withheld.

Further, Mr. Connolly himself has not claimed the exemption

under the privacy clause. In fact, he revealed more in his

conversation with the Star Ledger reporter than what was

disclosed in the incident report. [Appendix, A-16]. For example

we learn from Mr. Connolly the location of his vehicle and his

condition, and further that he had been drinking socially, and

that he passed out.

Other courts have focused on the substantive nature of

OPRA’s privacy clause. In Serrano v. South Brunswick Township,

358 N.J. Super. 352, 362 (App. Div. 2003), the Appellate

Division allowed public access to a tape of a 911 call made by a

homicide defendant a few hours before the crime. The defendant

16

did not object. In its ruling, the Court noted

it is reasonable to anticipate that [OPRA’s] declaration of the “public policy” respecting the “citizen’s reasonable expectation of privacy” will be considered extensively by the [Government Records Council] and the courts. The provision does not confront us here, however, because no privacy claim has been asserted. . . . . In the absence of a privacy claim with respect to the subject 911 tape, we leave for other occasions interpretation of the “citizen’s reasonable expectation of privacy” declared in N.J.S.A. 47:1A-1. Plainly, the issues presented on such occasions could be complex and challenging, and we recognize that they might entail a consideration and balancing of the [relevant] interests . . . and [of] the extent and nature of the interplay, if any, between the “citizen’s reasonable expectation of privacy” and the mandate, also set forth in N.J.S.A. 47:1A-1, to “construe[] in favor of the public’s right of access” any limitations in the statute on that right.

One wonders at the soundness of a reasonable expectation of

privacy in this case, where, according to the unredacted portion

of the report, and according to the Star Ledger report, the New

York City Police Department has been alerted.

We do not know what specific personal information with

respect to Mr. Connolly is contained in the redacted narrative.

We can imagine that there is information which would be gathered

17

pursuant to standard operating procedure by the Bayonne Police

Department:

[1] Where was the vehicle?

[2] How many occupants were in the vehicle?

[3] Who was driving the vehicle, or otherwise in control?

[4] Was the motor running, or shut off?

[5] Did the vehicle, as it was found by the police, pose any

danger to the general public?

[6] What was the general appearance of the driver?

[7] Was he intoxicated, or otherwise gave evidence of sensory

impairment?

[8] Was the vehicle searched for alcohol or other controlled

substances?

[9] Was a sobriety test administered? If not, why not?

[10] What possible violations of municipal ordinances and NJ

motor vehicle laws were considered, and dropped?

[11] At what level of authority were possible charges dropped?

[12] What was the disposition of the incident? Did the police

officers allow Mr. Connolly to continue with his nap in his

parked vehicle? Was Mr. Connolly given a ride home by the

Police Department? If so, what was the disposition of his

vehicle? Was it towed to his home? Or did a police officer

drive it to Mr. Connolly’s residence? In what respects did the

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Police Department follow standard operating procedures, and in

what respects did it depart from procedures?

With respect to the above list of twelve possible

questions, whereof the answers are likely in the redacted

portions of the incident report, which ones touch upon Mr.

Connolly’s personal privacy? And which ones reflect a decision

by the Department to withhold based upon reasons other than

personal privacy? The City’s broad, conclusory assertion of the

privacy clause is simply not supportable without providing

detailed reasons.

The Plaintiff also has a right to the requested documents

under the common law. The requestor does not have to meet both

OPRA and the common law right to access. Documents that are not

available under one approach may be accessed by another. If

disclosure is allowed under OPRA, the court should not reach the

issue regarding the common law right. See Asbury Park Press v.

County of Monmouth, 406 N.J. Super. 1, 4 (App. Div. 2009).

Moreover, the public might be able to obtain documents under

common law tests that it could not obtain through OPRA. See

Bergen County Improvement Auth., supra, 370 N.J. Super. at 510.

I. City Violated Open Public Records Act

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City Has the Failed to Satisfy its Burden of Proving That

Release of the Mr. Connolly’s personal information violates his

reasonable expectation of privacy.

The Record Custodian failed to give any written reason for

the redactions. After providing that the official records

request “form shall also include . . . space for the custodian

to list reasons if a request is denied in whole or in part,”

OPRA expressly states, “[i]f the custodian is unable to comply

with a request for access, the custodian shall indicate the

specific basis therefore on the request form. Thus, the Record

Custodian’s failure to give any written reason for the

redactions was a blatant violation of OPRA.

OPRA’s requirement that an agency give a specific written

basis for its redaction serves several purposes. First, a

records requestor cannot effectively challenge a withholding if

the requestor is unaware of its legal rationale. In a federal

Freedom of Information Act lawsuit, one court stated, “Denial of

this information would in all likelihood be a violation of due

process.” Shermco Industries, Inc. v. Secretary of the Air

Force, 452 F.Supp. 306, 317 n.7 (N.D. Tex. 1978), rev’d on other

grounds, 613 F.2d 1314 (5th Cir. 1980).

Secondly, nondisclosure of the legal grounds for the

20

withholding results in unnecessary litigation. In those

instances in which the agency has a legitimate legal ground for

withholding access, informing the requestor of the legal basis

may enlighten the requestor as to why further litigation would

be unwarranted and futile. In contrast, if the records requestor

is not informed of the legitimate basis for the withholding, he

or she may continue to litigate, thereby needlessly burdening

the courts, the requestor and the taxpayers who pay the agency’s

attorney.

The Plaintiff has provided the City with a spreadsheet which

lists the seven Doe factors [Doe v. Poritz, 142 N.J. 1, 88

(1995)], along with space for the Corporation Counsel to

describe the nature of the redacted items, and provide an

explanation for the application of the factors to each item

which is redacted. [Appendix, A- ]. The Court can attest to

the completeness of the disclosure by a review of the incident

report in camera.

Finally, Plaintiff is asking pursuant to N.J.S.A. 47:1A-11

for a $1,000.00 sanction against the City Clerk, as the Records

Custodian. Eight years after the effective date of OPRA, it

should be assumed that all records custodians know that they are

required to a give written reason for any denial, redaction or

withholding. The City Clerk cannot simply evade responsibility

21

for compliance with OPRA by blaming his Corporation Counsel.

The City Clerk has an obligation to insist upon written

explanations from his Corporation Counsel. Such a failure makes

the filing of this complaint necessary, burdening the Court, the

Plaintiff and the City.

II. City Violated The Common Law Right to Know Doctrine

The City has Failed to Demonstrate That The Records Sought Are

Protected Under the Common Law Right to Know

We turn now to the question whether Plaintiff is entitled

to receive a copy of the incident report under the common law

right to know. That the Legislature enacted OPRA did not

abrogate a citizen's common law right to have access to public

records. Michelson v. Wyatt, 379 N.J. Super. 611, 624 (App.

Div. 2005). "[N]othing contained in L. 1963, c. 73 (C.47:1A-1

et seq.), as amended and supplemented, shall be construed as

affecting in any way the common law right of access to any

record." N.J.S.A. 47:1A-1. The common law definition of what

constitutes a "government record" is not coterminous with the

OPRA definition, and in fact allows for a broader range of

information to be released. Higg-A-Rella Inc. v. Cty of Essex,

141 N.J. 35, 46 (1995). "The common law right to inspect public

22

records extends to a document made by a public employee in the

exercise of the public business." Michelson, supra, 379 N.J.

Super. at 624.

To prevail on a claim for access to documents under the

common law right to know, a plaintiff must establish both an

interest in the subject matter of the document and that a

balance of factors weighs in favor of disclosure. Higg-A-Rella,

supra, 141 N.J. at 46.

A citizen requesting disclosure of documents pursuant to the

common law right to know doctrine must satisfy a three-prong

requirement: "(1) the records must be common-law public

documents; (2) the person seeking access must establish an

interest in the subject matter of the material; and (3) the

citizen's right to access must be balanced against the State's

interest in preventing disclosure." Keddie v. Rutgers, 148 N.J.

36, 50 (1997).

Prong #1

To constitute a public record under the common law, the item

must be "a written memorial[] . . . made by a public officer,

and . . . the officer [must] be authorized by law to make it."

Nero v. Hyland, 76 N.J. 213, 222 (1978). The common law

definition of a public record is broader than the definition

23

contained in OPRA. Bergen County Improvement Auth. v.

N. Jersey Media Group, Inc., 370 N.J. Super. 504, 509-10 (App.

Div.), certif. denied, 182 N.J. 143 (2004); see also Keddie v.

Rutgers, supra(comparing common law right of access to RTKL);

Nero, supra, 76 N.J. at 221..

The police incident report of August 2, 2008 which is the

subject of the Plaintiff’s request meets the test for a public

record.

Prong #2

To access this broader class of documents, requestors must

make a greater showing than required under OPRA: (1) "the person

seeking access must `establish an interest in the subject matter

of the material'"; and (2) "the citizen's right to access `must

be balanced against the State's interest in preventing

disclosure.'" Keddie, supra, 148 N.J. at 50 (internal citations

omitted).

The Plaintiff is a resident of Bayonne, New Jersey. He has

an interest that the Bayonne Police Department does not show

favoritism when enforcing State laws and Municipal ordinances.

To display favoritism by police officers has the effect of

demoralizing those police officers who are diligent and

conscientious. The Plaintiff also has an interest in the

24

disbursement of public funds. To the extent that the Department

is engaged in actions which are not in accordance with standard

operating procedure may be an indication of misuse of public

funds.

For the above reasons, the plaintiff clearly satisfies that

he has standing under the common law.

Prong #3

When evaluating prong three, the courts should consider the

six factors set forth in Loigman v.Kimmelman, 102 N.J. 98, 113

(1986). These factors are:

(1) the extent to which disclosure will impede agency functions by discouraging citizens from providing information to the government; (2) the effect disclosure may have upon persons who have given such information, and whether they did so in reliance that their identities would not be disclosed; (3) the extent to which agency self-evaluation, program improvement, or other decision making will be chilled by disclosure; [4] the degree to which the information sought includes factual data as opposed to evaluative reports of policy makers; [5] whether any findings of public misconduct have been insufficiently corrected by remedial measures instituted by the investigative agency; and (6) whether any agency disciplinary or investigatory proceedings have arisen that may circumscribe the individual's asserted need for the materials. [Ibid.]

The Loigman factors, however, are not exhaustive and other

25

criteria may be examined. Educ. Law Ctr. ex rel. Burke v. N.J.

Dep't of Educ., 396 N.J. Super. 634, 644 (App. Div. 2007), rev'd

on other grounds, 198 N.J. 274 (2009).

In making a decision whether to disclose the documents, the

"trial court must examine each document individually and make

factual findings with regard to why [a plaintiff's] interest in

disclosure is or is not outweighed by [the State's] interest in

non-disclosure." Keddie, supra, 148 N.J. at 54. Further, the

trial court should "make specific determinations regarding

plaintiff's access to [the records], including an expression of

reasons for the court's rulings. The trial court must examine

each document individually, and explain as to each document

deemed privileged why it has so ruled." Seacoast Builders Corp.

Rutgers, 358 N.J. Super. 524, 542 (App. Div. 2003). See also

Rosenberg v. Norcross, ( Appellate Division A-6440-08T3, May 26,

2010, unpublished)

The Plaintiff has provided the City with a spreadsheet which

lists the six Loigman factors, along with space for the

Corporation Counsel to describe the nature of the redacted

items, and provide an explanation for the application of the

factors to each item which is redacted. This is how the City can

demonstrate the it has balanced public disclosure with privacy

interests. [Appendix, A-23].

26

The letter of the Corporation Counsel does not provide a

basis under the common law and these factors for denying the

public’s right to know.

The Court can attest to the completeness of this spreadsheet

by a review of the incident report in camera.

Conclusion

Because the City has not explained why its redactions were

authorized by law, as required by N.J.S.A. 47:1A-5(g), or

articulate a basis for its need to keep the redacted information

confidential as required by the common law, North Jersey

Newspapers Co. v. Passaic County Bd. of Chosen Freeholders,

127 , the plaintiff is entitled to the entry of an Order to Show

Cause, the production of the requested documents with

explanation of redactions, and fees and costs.

Respectfully submitted,

____________________________

_____________________________

THIS MATTER being brought before the Court by Bruce D.

Kowal, pro se, as plaintiff, seeking relief by way of summary

action pursuant to R. 4:67-1(a), based upon the facts set forth

in the verified complaint filed herewith; and the Court having

determined that this matter may be commenced by order to show

cause as a summary proceeding pursuant to the Open Public

Records Act, N.J.S.A. 47:1A-6 and for good cause shown.

IT IS on this ______ day of ________________, 2010, ORDERED

that the Defendants, CITY OF BAYONNE and ROBERT SLOAN, CITY

CLERK OF THE CITY OF BAYONNE in his professional capacity as

CITY CLERK OF THE CITY OF BAYONNE, appear and show cause on the

________day of ____________________, 2010 before the Superior

SUPERIOR COURT OF NEW JERSEYLAW DIVISION, HUDSON COUNTY CIVIL PART

Docket No.: CIVIL ACTION ORDER TO SHOW CAUSE

SUMMARY ACTION

BRUCE D. KOWAL, Plaintiff,

vs.

CITY OF BAYONNE and ROBERT SLOAN, CITY CLERK OF THE CITY OF BAYONNE in his professional capacity as CITY CLERK OF THE CITY OF BAYONNE, Defendants

))))))))))))))))))))

28

Court at the Hudson County Courthouse in Jersey City, New Jersey

at _____ o’clock in the _____ noon, or as soon thereafter as

counsel can be heard, why judgment should not be entered for:

A. A declaration that the City of Bayonne violated OPRA and

the common law right of access to public records by refusing to

provide Plaintiff with the unredacted requested police incident

report without providing specific reasons why each item of

information in the report was protected, or not protected, from

disclosure;

B. An order that the City of Bayonne provide Plaintiff with

explanations of each item of information redacted according to

the OPRA standards under Doe v. Poritz, 142 N.J. 1, 88 (1995)

and the common law standards under Loigman v. Kimmelman, 102

N.J. 98, 113 (1986);

C. An award of costs and attorney’s fees; and

D. Granting such other relief as the court deems equitable

and just.

And it is further ORDERED that:

1. A copy of this order to show cause, verified complaint

and all supporting affidavits or certifications submitted in

support of this application be served upon the defendants

personally within ____ days of the date hereof, in accordance

with R. 4:4-3 and R. 4:4-4, this being original process.

29

2. The plaintiff must file with the court his/her/its proof

of service of the pleadings on the defendants no later than

three (3) days before the return date.

3. Defendants shall file and serve a written answer to

this order to show cause and the relief requested in the

verified complaint and proof of service of the same by

_________________, 2010. The answer must be filed with the

Clerk of the Superior Court in the county listed above and a

copy of the papers must be sent directly to the chambers of

Judge _____________________.

4. The plaintiff must file and serve any written reply to

the defendant’s order to show cause opposition by

_________________________________, 20__. The reply papers must

be filed with the Clerk of the Superior Court in the county

listed above and a copy of the reply papers must be sent

directly to the chambers of Judge _____________________.

5. If the defendants do not file and serve opposition to

this order to show cause, the application will be decided on the

papers on the return date and relief may be granted by default,

provided that the plaintiff files a proof of service and a

proposed form of order at least three days prior to the return

date.

6. If the plaintiff has not already done so, a proposed form

30

of order addressing the relief sought on the return date (along

with a self-addressed return envelope with return address and

postage) must be submitted to the court no later than three (3)

days before the return date.

7. Defendants take notice that the plaintiff has filed a

lawsuit against you in the Superior Court of New Jersey. The

verified complaint attached to this order to show cause states

the basis of the lawsuit. If you dispute this complaint, you,

or your attorney, must file a written answer and proof of

service before the return date of the order t o show cause.

These documents must be fled with the Clerk of the Superior

Court in the county listed above. A list of these offices is

provided. Include a $ ________ filing fee payable to the

“Treasurer State of New Jersey.” You must also send a copy of

your answer, answering affidavit or motion to the plaintiff’s

attorney whose name and address appear above, or to the

plaintiff, if no attorney is named above. A telephone call will

not protect your rights; you must file and serve your answer,

answering affidavit or motion with the fee or judgment may be

entered against you by default.

8. If you cannot afford an attorney, you may call the Legal

Services office in the county in which you live. A list of

these offices is provided. If you do not have an attorney and

31

are not eligible for free legal assistance you may obtain a

referral to an attorney by calling one of the Lawyer Referral

Services. A list of these numbers is also provided.

9. The Court will entertain argument, but not testimony, on

the return date of the order to show cause, unless the court and

parties are advised to the contrary no later than _____ days

before the return date.

______________________________

J.S.C.

33

Bruce D. Kowal

177 Avenue BBayonne, NJ 07002Tel:201-232-2538Fax: 888-477-0060brucekowal@me.comPlaintiff, pro se

BRUCE D. KOWAL, Plaintiff,

vs.

CITY OF BAYONNE and ROBERT SLOAN, CITY CLERK OF THE CITY OF BAYONNE in his professional capacity as CITY CLERK OF THE CITY OF BAYONNE,

APPENDIX

5/7/2010 Bruce Kowal’s OPRA and Common Law Request A-15/27/2010 Bruce Kowal’s Letter to City A-115/28/2010 City’s Fax to Kowal A-159/04/2008 NJ.com Published report: “Ted Connolly blames blood pressure for passing out in car” A-1606/16/2010 Corporation Counsel’s cover letter and redacted incident report A-1706/21/2010 Kowal’s letter to Corporation Counsel requesting explanation of redactions and asserting right to records under common law. A-20

SUPERIOR COURTLAW DIVISION, CIVIL PARTHUDSON COUNTYDOCKET NO.

CIVIL ACTION