FILED JUN :4. JUDGE tras. be commenced by order to show cause as.a summary proceeding pursuant to N.I.S.A.

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1 WALTER M. LUERS, ESQ LAW OFFICES OF WALTER M. LUERS, LLC Suite C West Main Street Clinton, New Jersey Telephone: Attorney for Plaintiff JOHN PAFF, FILED JUN :4 JUDGE tras. RECEIVED JUN TRAVIS L. FRANCIS ASSIGNMENT JUDGE MIDDLESEX'VICINAGE SUPERIOR COURT OF NEW JERSEY IAW DIVISION: MIDDLESEX COUNTY v. CITY OF PERTH AMBOY and ELAINE M. JASKO in her official capacity as Municipal Cie& and Records Custodian of the City of Perth Amboy, DOCKET NO. VO4:- n CIVIL ACTION ORDER TO SHOW CAUSE SUMMARY ACTION THIS MATTER being brought before the Court by Law Offices of Walter M. Luers, LLC, attorney for Plaintiff John Paff, seeking relief by way of summary action pursuant to R 4:67-1(a), based upon the facts set forth in the verified complaint and supporting'papers filed herewith; and'the Court having determined that this matter may be commenced by order to show cause as.a summary proceeding pursuant to N.I.S.A. 47:1A-6 amlfor good cause shown, IT IS on this day of 2014 ORD,ERED that the Defendants City of Perth Amboy and Elaine M. Jasko appear and show cause on the 50 day of.201 before the Honorable Travis L. Francis, A.J.S.C., Superior Court of New Jersey, County of Middlesex, Middlesex County. Courthouse, 56 Paterson Street, New Brunswick, New Jersey'at / o'clock in the noon or as soon thereafter as counsel can be heard, why judgment should not be entered:

2 A. Ordering Defendants to provide Plaintiff with copies of the records requested by him, which were "all police incident reports, including supplemental reports, regarding an alleged February 22, 2010 sexual assault by teacher Eric Combs against teacher Kara Sakowski" and all "CDR forms or other forms of complaint that wen 'filed as a result of this alleged incident." B. Awarding Plaintiff.costs and reasonable attorneys' fees; and C. For such other or further relief as this Court deems just and equitable.

3 IT IS FURTHER ORDERED AS FOLLOWS: A. 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 defendant(s) PERSONALLY OR BY OVERNIGHT DELIVERY WITH SIGNATURE CONFIRMATION ONLY within seven (7) days of the date hereof, in accordance with Rules 4:4-3 and R. 4:4-4, this being original process. DELIVERY BY REGULAR MAIL AND CERTIFIED MAIL, RETURN RECEIPT REQUESTED, SHALL NOT CONSTITUTE EFFECTIVE SERVICE. B. The plaintiff must file -with the court his/her/its proof of service of the. pleadings on the defendant(s) no later than three -(3) days before the return date. C. Defendant(s) shall, file and serve a written answer, an answering affidavit or a motion returnable on the return date to this order to show cause and the relief requested in the verified complaint and proof of service of the same within fifteen (1.5) days of service. The answer, answering affidavit or a motion, as the case may be, must be filed with' the Clerk of the Superior Court in Middlesex County and a courtesy copy of the papers must be sent directly to the chambers of Assignment Judge Francis by hand delivery or overnight carrier. D. The plaintiff must file and serve any written reply to the defendant's order to show cause opposition by' no, later than three (3) days before the return date. The reply papers must be filed with the Clerk of the Superior Court in Middlesex County and a -courtesy copy of the reply papers must be sent directly to the chambers of Assignment Judge Francis by hand delivery or overnight carrier. E. If the defendant(s) do/does 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 (3) days prior to the return date. F. If the plaintiff has not already done so, a proposed form 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. G. Defendant(s) 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, an answering affidavit or a motion returnable on the return date to the order to show cause, and proof of service before the return date of the order to show cause.

4 H. These documents must be filed with the Clerk of the Superior Court in Middlesex County. A directory of these offices is available in the Civil Division Management Office of Middlesex County and online at pdf. Include the appropriate filing fee, if any, 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 appropriate filing fee, if any, or judgment may be entered against you by default. 1. If you cannot afford an attorney, you may call the Legal Services office in the county in which you live or the Legal Services of New Jersey Statewide Hotline at LSNJ- LAW ( ). If you do not have an attorney and are not eligible for free legal assistance you may obtain a referral to an attorney by calling one of the Lawyer Referral Services. A directory with =contact information for local Legal Services Offices and Lawyer Referral Services is available in the Civil Division Management Office of Middlesex County and online at judiciary.state.nj. us/prose/10183_deptyclerklawretpdf. J. The Court will entertain argument, but not testimony, on the return date of the order to show cause, unless the Court is advised by the parties to the contrary no later than three (3) days before the return date or no opposition to the order to show cause is filed. K ABSENT A SHOWING OF EXCEPTIONAL AND UNFORESEEN CIRCUMSTANCES, THE COURT WILL NOT ENTERTAIN ADJOURNMENT REQUESTS RECEIVED ON THE DAY BEFORE THE RETURN DATE. For future reference, please refer to. Form (Order to Show Cause Summary Action), which is available online at for an example of a properly-formatted order to show cause.

5 WALTER M. LUERS, ESQ LAW OFFICES OF WALTER M. LUERS, LLC Suite West Main Street Clinton, New Jersey Telephone: Attorney for Plaintiff e r tl_c_ Li Cc, b P 5 JOHN PAFF, Plaintiff, v. CITY OF PERTH AMBOY and ELAINE M. JASKO in her official capacity as Municipal Clerk and Records Custodian of the City of Perth Amboy, SUPERIOR COURT OF NEW JERSEY LAW DIVISIONr, MIDDLESEX COUNTY MID-L DOCKET NO. CIVIL ACTION VERIFIED COMPLAINT Defendants. Plaintiff John Paff through his undersigned counsel Law Offices of Walter M. Luers, LLC, by way of complaint against the Defendants City of Perth Amboy and Elaine J. Masko in her official capacity as Records Custodian and Municipal Clerk of the City of Perth Amboy, alleges as follows: PRELIMINARY STATEMENT 1. This is an action alleging violations of the Open Public Records Act, N.J.S.A. 47:1A-1, et seq. ("OPRA") and the Common law right of access seeking to require disclosure of police, investigation incident reports and complaints filed with respect to allegations that one teacher sexually assaulted another teacher at a Perth Amboy school. THE PARTIES, 2. " Plaintiff John Paff is a resident of Franklin Township, New Jersey. His address is P.O. Box 5424 Somerset, NJ

6 3. Defendant City of Perth Amboy is a public municipal body corporate and politic of the State of New Jersey and is a political subdivision of the State of New Jersey. The City's principal place of business is located at City Hall, 260 High Street, Perth Amboy, New Jersey Defendant City of Perth Amboy is a "public agency" as the term is defined by OPRA, NJ.S.A. 47:1A-1.1, 4, Defendant Elaine 3. Masko is Municipal Clerk to the City of Perth Amboy and a "Custodian of a government record" as that term is defined by NJ.S.A. 47:1A-1.1. Her principal place of business is located at City Hall, 260 High Street, Perth Amboy, New Jersey JURISDICTION AND VENUE 5. The Court has subject matter jurisdiction of this action pursuant to N.J.S.A. 47:1A-6 and the common law. 6. Venue is proper in this Court pursuant to R. 4:3-2(0(2) because all of the relevant events occurred in this County, and the public agency, the Defendant, is a municipal agency located within this County. FACTUAL ALLEGATIONS. Thi$ case was brought because Defendants have denied Plaintiff access to records of a criminal investigation. 8. On April 29, 2014, Plaintiff blogged about a teacher in Perth Amboy who brought a civil lawsuit against the Perth Amboy Board of Education alleging, among other things, claims under New Jersey's Law Against Discrimination. In her lawsuit, the teacher claimed that on February 22, 2010 she was sexually assaulted by another teacher and that some of the school's administrators suppressed the incident and did not report it to: the police.

7 Eventually, according to the civil lawsuit, the matter was repotted to the police by a different administrator. That lawsuit was settled on March 26, 2014 with a payment of $199,999 by the Board of Education to the teacher. 9. Plaintiff s blog story was picked up by the Home News and Tribune and the Star Ledger. 10. As a result of the attention Plaintifr s blog received, he filed several OPRA requests with the City of Perth Amboy. In one of those OPRA requests, he requested copies of "All police incident reports, including supplemental incident reports, regarding an alleged February 22, 2010 sexual assault by teacher Eric Combs against teacher Kara Sakowski" and for copies "of all CDR forms or other forms of complaint that were filed as a result of this alleged incident." 11. Plaintiff s OPRA request was transmitted via to ejasko@perthamboygi:com, which is the Municipal Clerk's address. This OPRA request and Plaintiff s communications with Defendants are attached to the June 14, 2014 Luers Certification being filed contemporaneously herewith. 12. On May 2, 2014, Defendants deni.ed access to the requested records by starting that the records were "criminal investigatory records" and that the CDR forms "do net fall under OPRA" 13. On May 2, 2014, Plaintiff responded via to the Clerk, stating that the CDR forms or complaints are subject to OPRA through the City, even if they might: also be available through the courts, 14. On May 6, 2014; Defendants responded that there were no CDR.s or complaint forms on file regarding the alleged sexual assault.

8 15. The records requested by Plaintiff are public records.. Even if some of the records requested by Plaintiff are not subject to OPRA as criminal investigatory records, Plaintiff is still entitled to the release of information pursuant to N.J.S.A. 47:1A-3(b). 16. The documents-requested by Plaintiff are public records and subject to disclosure. Plaintiff submitted a valid OPRA. request. 17. Plaintiff has a strong public interest and legitimate private interest in obtaining the requested documents. Plaintiff's interest is in investigating and disclosing incidents of public misconduct, whether committed by civilian employees or the police. Plaintiff submits dozens of OPRA requests each year, which are focused on civil litigation involving public entities, the use and accounting of public money, and public misconduct. Plaintiff blogs about what he finds, and sometimes his articles are of sufficient interest that other media pick up on the stories (as happened here). 18, Defendants' interest in non-disclosure does not outweigh Plaintiff's interest in disclosure. COUNT I: VIOLATION OF NASA. 47:11.1. et seq. COPRA) 19. The Plaintiff repeats and incorporates by reference each and every allegation contained, in paragraphs 1-18 Of the Plaintiff's complaint as though, fully set forth at length herein. 20. The Defendants have violated OPRA by not providing. copies of the documents requested by Plaintiff

9 COUNT II: VIOLATION OF COMMON LAW RIGHT OF ACCESS 21. Plaintiff repeats and incorporates by reference each and every allegation contained in paragraphs 1-20 of the Plaintiff's complaint as though fully set forth at length herein. 22. Plaintiff has a common law right of access to receive copies of the documents requested on July 16, , Plaintiff has a legitimate private interest and wholesome public interest in the requested records. 24. Defendants have no legitimate interest in maintaining the secrecy of these. documents. Therefore, the Defendants have violated Plaintiff's common law right of access. WHEREFORE, Plaintiff respectfully requests that this Court enter judgment against the Defendants: A. Ordering Defendants to provide copies of the documents requested by Plaintiff, B. Awarding,Plaintiff costs and reasonable attorneys' fees;.and C. For such other or further relief as this Court deems just and equitable. CERTIFICATION PURSUANT TO R 4:5-1 I certify that the dispute about which I am suing is not the subject of any other action pending in any other court or a pending arbitration proceeding to the best of my knowledge and belief. Also, to the best of my knowledge and belief no other action or arbitration proceeding is contemplated. Further, other than the parties set forth in this complaint, I know of no other parties that should be made a part of this lawsuit In addition, I recognize my continuing

10 obligation to file and serve on all parties and the Court an amended certification if there is a change in the facts stated in this original certification. CERTIFICATION PURSUANT TOR. 1:38-7(B) I certify that confidential personal identifiers have been redacted from documents now submitted to the Court, and will be redacted from all documents submitted in the future. DESIGNATION. OF TRIAL COUNSEL Pursuant to R 4:25-4, Walter M. Luers, Esq. is designated as trial counsel on behalf of Plaintiff Respectfully Submitted, LAW OFFICES OF WALTER M. LUERS, LLC DATED: June 14, By: Walter M. Luers, Member Suite C West Main Street Clinton, New Jersey Telephone:

11 VERIFICATION John Paff, of full age, certifies as follows: 1. I am the Plaintiff in the action captioned "John Paff v. City of Perth Amboy, et al." All of the facts stated in the verified complaint to which this Verification is attached are true, and as to those facts that are alleged on information and belief, I believe those facts to be true. 2. 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. Dated: June 14, 2014 John Paff

12 Law Offices of Waiter M. Luers, LLC Suite C West Main Street Clinton, New Jersey Telephone: Facsimile: June 14, 2014 Walter M. Luers, Esq.* *Also admitted in. New York Writer's Direct Honorable Travis L. Francis, A.J.S.C. Superior Court Law Division Middlesex County Courthouse 56 Paterson Street New Brunswick, New Jersey Re: Paff v. City of Perth Amboy, et al Dear Judge Francis: We are submitting this Letter Brief in lieu of a more formal brief in support of this action under the Open Public Records Act ("OPRA"), N.J. S.A. 47:1A-1, et seq., which has been opened to the Court via Verified Complaint and Order to Show Cause. This action is being brought because Defendants have denied Plaintiff to records and information that should have been disclosed pursuant to NJ:SA. 47:1A-3(b), which requires certain information from criminal investigations to be produced to the public. First, we discuss the facts of this case. Second, we discuss why this action should proceed in a summary manner. Third, we discuss legal arguments that support disclosure, addressing OPRA and then the common law right of access. STATEMENT OF FACTS The facts as presented in the Verified Complaint should not be reasonably disputed. The facts are recited in our Verified Complaint and the OPRA requests and denials are attached to the Luers Certification.

13 Honorable Travis L. Francis, A.J.S.C. June 14, 2014 Page 2 of 8 LEGAL ARGUMENT POINT I PLAINTIFF'S ACTION SHOULD PROCEED IN A SUMMARY MANNER The standards governing the initiation of OPRA actions are familiar ones. "A person who is denied access to a government record by the custodian of the record,... may institute a proceeding to challenge the custodian's decision by filing an action in Superior Court." N.J.S.A. 47:1A-6. Once instituted, "[a]ny such proceeding shall proceed in a summary or expedited manner." Id. "This statutory language requires a trial court to proceed under the procedures prescribed in Rule 4:67." Courier News v. Hunterdon County Prosecutor's Office, 358 N.J. Super. 373, 378 (App. Div. 2003). Any such action must be initiated by Order to Show Cause, supported by a verified Complaint. Id. (citing R. 4:67-2(a)). Here, because OPRA authorizes actions under it to proceed in a summary manner, and Plaintiff's request for an order to show cause is supported by a verified complaint, the relevant documents have been provided via certification, and the relevant facts should not reasonably be disputed, the order to show cause should be granted so this matter may proceed M a summary manner. R. 4:67-2(a). POINT II THE RECORDS SHOULD BE DISCLOSED PURSUANT TO OPRA Plaintiff seeks records pursuant to OPRA. 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

14 Honorable Travis L. Francis, A.J. S.C. June 14, 2014 Page 3 of 8 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)). These lofty descriptions of the purposes of OPRA are not mere bromides or empty statements of legislative intent. Our Supreme Court has stated that "Those who enacted OPRA understood that knowledge is power in a democracy, and that without access to information contained in records maintained by public agencies citizens cannot monitor the operation of our government or hold public officials accountable for their actions." Fair Share Housing Center, Inc. v. New Jersey State League of Municipalities, 207 N.J. 489, 502 (2011). The burden of proof in showing that a denial of access was justified rests solely with the Records Custodian. N.J.S.A. 47:1A-6; Asbury Park Press v. Monmouth County, 406 N.J. Super. 1, 7 (App. Div. 2009). Here, the documents sought by Plaintiff are "government records" within the meaning of OPRA. Under OPRA, a "government record": means any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. NJ.S.A. 47:1A-1.1.

15 Honorable Travis L. Francis, A.J.S.C. June 14, 2014 Page 4 of 8 A "criminal investigatory record" is a "record which is not required by law to be made, maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding." N.J.S.A. 47:1A-1.1. Such records are exempt from access under OPRA. Id However, OPRA contains an exception to this exception. Under OPRA, the following information "shall be available to the public within 24 hours or as soon as practicable" after a criminal investigation has commenced: (1) "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;" (2) "if an arrest has been made, information as to the name, address and age of any victims.."; (3) "if an arrest has been made, information as to the defendant's name, age, residence, occupation, marital status and similar background information and, the identity of the complaining party unless the release of such information is contrary to existing law or Court Rule"; (4) "information as to the text of any charges such as the complaint, accusation and indictment unless sealed by the court or unless the release of such information is contrary to existing law or court rule"; (5) "information as to the identity of the investigating and arresting personnel and agency and the length of the investigation"; (6) "information of the circumstances immediately surrounding the arrest, including but not limited to the time and place of the arrest, resistance, if any, pursuit, possession and nature and use of weapons and ammunition by the suspect and by the police"; and (7) "information as to circumstances surrounding bail, whether it was posted and the amount thereof" N.J.S.A. 47:1A-3; see also O'Shea v. Township of West Milford, 410 N.J. Super. 371, 377 (App. Div. 2009) (discussing these exceptions). Based on the extremely limited information made available to the Plaintiff, it is not clear how far the police investigated the sexual assault allegations. But, based on the

16 Honorable Travis L. Francis, A.J.S.C. June 14, 2014 Page 5 of.8 allegations contained in the civil complaint, there was at least a "report" of a crime, thus triggering the exceptions under this section. The fact that the Defendants have invoked the criminal investigatory record exception suggests that a "crime" was reported. If a "crime" was "reported," then the public has the right to know the information listed in this exception. If the allegations of the civil lawsuit are to be believed, then at some point the alleged victim found a person within the Board of Education who was willing to contact the police to report the alleged sexual assault. The police records and reports should at least reflect this contact. The Court should apply N.J.S.A. 47:1A-3(b) and order the Defendants to provide to the Plaintiff the reports he requested to the extent necessary to disclose the information outlined in the paragraph b exception. POINT III: THE RECORDS SHOULD BE DISCLOSED PURSUANT TO THE COMMON LAW RIGHT OF ACCESS If this Court should deny access to the records requested under OPRA, the Court should grant access under the common law right of access. The public's right of access to records is broader under the common law right of access than under OPRA. "Nothing contained in [OPRA] shall be construed as limiting the common law right of access to a government record, including criminal investigatory records of a law enforcement agency." NJ.S.A. 47: A- 8; see also North Jersey Media Group Inc. v. State, Dep't of Personnel, 389 N.J. Super. 527, 536 (Law. Div. 2006); Bergen County Improvement Auth. v. N Jersey Media Group, Inc., 370 N.J. Super. 504, 516 (App. Div. 2004). Thus, the right of access to records under the common law is broader than under OPRA. North Jersey Media Group, 389 N.J. Super. at 537. The common law right of access has three elements: (1) the records must be common law public documents; (2) the person who seeks access must "establish an interest in

17 Honorable Travis L. Francis, A.J.S.C. June 14, 2014 Page 6 of 8 the subject matter of the material," South Jersey Publishing Co. v. New Jersey Expressway Auth., 124 N.J. 478, 487 (1991), and (3) the citizen's right to access "must be balanced against the State's interest in preventing disclosure." Higg-A-Rella, Inc., 141 N.J. at 46; see also Keddie v. Rutgers, The State University, 148 N.J. 36, 50 (1997) (discussing these three elements). Common law public records "include almost every document recorded, generated, or produced by public officials whether or not 'required by law to be made, maintained or kept on file.'" Shuttleworth v. City of Camden, 258 N.J. Super. 573, 582 (App. Div. 1992). Here, the records sought here are public records because they are kept by the public agency. Higg-A- Rella, Inc., 141 N.J. at 46 (defining a common-law record as one that is made by a public official in the exercise of their public function, either because the record was required or directed by law to be made or kept, or because it was filed in a public office). To determine whether the records should be disclosed to Plaintiff, this Court must balance Plaintiff's interest in disclosure against Defendant's interest in confidentiality. In weighing whether disclosure outweighs confidentiality, New Jersey courts have weighed several factors, including (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 decisionmaking 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.

18 Honorable Travis L. Francis, A.J.S.C. June 14, 2014 Page 7 of 8 Loigman v. Kimmelman, 102 N.J. 98, 113 (1986). In this case, there is no evidence that disclosure would impede agency functions. There is no evidence that any information was disclosed in exchange for promises of confidentiality. It is unknown whether agency self-evaluation will be chilled by disclosure. In the civil lawsuit, that case was settled for $199,999. This is not nuisance value. Presumably, whatever agency self-evaluation that would have happened would have occurred sometime between the filing of the civil lawsuit and the settlement of that lawsuit. The information does not relate to policy formulation. It is unknown whether any findings of misconduct have been remedied and, because all parties to the LAD lawsuit have signed confidentiality agreements, it is unlikely that we will ever know. Neither do we know whether any agency disciplinary proceedings were initiated. Beyond these factors, allegations that a teacher was sexually assaulted by another teacher are very serious. As serious are allegations that some Board employees tried to cover up the allegations. Because the matter was settled and did not go to trial, we will never have the results of a jury verdict to aid us in determining whether those allegations were true. But 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.

19 Honorable Travis L. Francis, A.J.S.C. June 14, 2014 Page 8 of 8 Pam IV AWARD OF REASONABLE ATTORNEY'S FEES If the Court orders Defendants' to produce the documents at issue, the Court should find that Plaintiff is the prevailing party and, under OPRA' s fee-shifting provision and the common-law right of access, award Plaintiff a reasonable attorneys' fee and costs. N.J.S.A. 47:1A-6; Mason v. Hoboken, 196 N.J. 51, 79 (2008) (concluding that catalyst theory applies to fee awards under both OPRA and the common law right of access). Respectfully submitted (1) Walter M. Luers

20 WALTER M. LUERS, ESQ LAW OFFICES OF WALTER M. LUERS, LLC Suite C West Main Street Clinton, New Jersey Telephone: Attorney for Plaintiff JOHN PAFF, Plaintiff, v. CITY OF PERTH AMBOY and ELAINE M. JASKO in her official capacity as Municipal Clerk and Records Custodian of the City of Perth Amboy, SUPERIOR COURT OF NEW JERSEY LAW DIVISION: MIDDLESEX COUNTY DOCKET NO. CIVIL ACTION CERTIFICATION OF WALTER M. LUERS Defendants. WALTER M. LUERS, of full age, who is the attorney for the Plaintiff in this action, hereby certifies and says: I. Attached to this Certification are true and correct copies as provided to me by Plaintiff John Paff: Plaintiffs OPRA request to Defendants; three s exchanged between Plaintiff and the Municipal Clerk on May 2, 2014 and May 6, 2014; and two documents forwarded by from the Municipal Clerk to the Plaintiff from the Perth Amboy police that denied Plaintiff's OPRA request on the basis that "CDR forms and complaints do not fall under OPRA" and based on the criminal investigatory record exception. 2. 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.

21 DATED: June 14, 2014 Arini 4441_, Walter M. Luers

22 To Subject: OPRA Request City of Perth Amboy City of Perth Amboy Please accept this /fax as my request for government records in accordance with the Open Public Records Act (OPRA) and the common law right of access. Please respond and send all responsive documents to me via at If is not possible, please fax responses and responsive records to me at Also, I would appreciate it if you would acknowledge your receipt of this . Records requested: 1. All police incident reports, including supplemental reports, regarding an alleged February 22, 2010 sexual assault by teacher Eric Combs against teacher Kara 8akowski. 2. Copies of all CDR forms or other forms of complaint that were filed as a result of this alleged incident. Thank you. John Paff (voice ) 1 of 1 5/8/2014 7:57 PM

23 Gmail - RE: OPRA - Perth Amboy comimail/u/onui=2861c=af5d f48cv ew=pt& all John Paff <opengovtissuesamail.com > RE: OPRA - Perth Am boy 1 message Elaine Jasko <elaine@perthamboynj,org> To: John Paff <paff@poboxoom> Tie, May 6, 2014 at 4:39 PM Hi John- The Chief of Police has just advised me that the Perth Amboy Police Dept. has no CDR's/Complaints regarding this.matter on file. Elaine From: opengovtissues@gmail.com [msilto:opengovtissues@gmail.com ] On Behalf Of John Paff Sent: Friday, May 02, :33 PM To: Elaine Jasko Subject: Re: OPRA - Perth Amboy Elaine: Just because CDRs and complaint can be obtained from the courts doesn't mean that I'm not entitled to them under OPRA from the City, if the City has possession of copies of the CDRs/complaints. Please ask the PD to forward me copies of the CDRs/Complaints that are on file. If they refuse to do this, at least ask them to confirm whether or not they have the CDR/complaints on file. Thank you. John John Paff P,O. Box 5424 Somerset, NJ Voice: Fax: Paff@pobox,com On Fri, May 2, 2014 at 206 PM, Elaine Jasko <elaine@perthamboylorg> wrote: Hi John- Attached please find the responses that I received from the Pollee Dept w ith regard to your OPRA request. Elatne Elaine M. Usk, RMC/MMC City Clerk (732) of 2 5/8/2014 7:54 PM

24 Gmail - RE; OPRA - Perth Amboy -pt&q=ela... ejaskoqpertharriboynj. org 2 of 2 5/8/2014 7:54 PM

25 Lourdes Ruiz From: Sent: To: Subject: Bruni Lugo ) Friday, May 02, :41 AM Lourdes Ruiz John Paff Opra Request for Sexual Assault Lourdes, The copies of CDR forms and complaints do not fall under OPRA. They have to be requested through the courts. 1

26 PERTH AMBOY POLICE DEPARTMENT KWIC RECO.RDS REQUEST RESPONSE TO: GI Document(s) provided: Viet at total cost Of Docartnent(s) not provided (see below) The document or documents listed below and requested by you are not being provided because the document or documents are not puublic records as provided by law, as noted below: Privileged or Protected Category o. a ra a ci O ci a. a a tzt a a ci U a Autopsy Reports OW abuse or sex assault victim nama or address Citizen's Reasonable Expeetation of Privacy Court Tacards settled Computer security information Criminal investigatory records Credit Cod Numbers Grand Jury testimony, information Grievance information with public employer Domestic Violence data Drivers' Herniae rausabets DYES information Electronic Surveillance Materials Emergency or waxily information or pmeedurcs limployce SextliallaraSBMOLIt complaints Fingerprint cards Inimical to the Public Interest Inter-agency or intta-agency advisory communkations Nrlieraik records Labor Negotiation inthrmatiort, strategy or positions Medical Examiner Photographs Otherwise irtaxtropriate materiel Pension and personnel records Elvotagtaphs Pre-Sentence Investigations Public Agency loom= communications Safety apt:mons orpublic Security mcasta-es aid surveillance techniques Social Security Numbers Unlisted Telephorpe Numbers Victim locations (Domestic Violence) Victim records Record has been destroyed/not retained pursuant an Other AutheritY N.J.S.A. 47:1A-1-1, et seq. 2A:82-46b 47:1A-1,1, at seq. Eve:wive Order 69 47:1A-1,1, at sect. N.J.S.A. 47:1A-1,1, at seq N.J.S.A.47:1A-1, 1, at seq. Cone Rule 16-7 NS U.A. 47:1A-1,1, at seq. N.J.S.A. 2C:25-33 N.J.S.A. 47:1A-1.1, at seq. Tt.J,9A. 9: N.I.S.A.2.441SISA-19 14,1.S.,A, 47:1A-1.1, at seq. N.J.SA. 47:1A-1.1, at seq. Exmotive Order 69 47:1A-1.1, at seq. N.J.S.A. 4721A-1.1, at seq. N.J.S.A. 2A:4A-60 N.J.S.A. 47:1A-1.1, at seq. NJ,S.A. 47:1A-1.1, at seq. Executive Order 0 47:1A-1.1, et seq. N.J.S.A. 47;1A-1.1, at seq.; Exec. Order 69 State v_ DoGoorge, 113 NI Super.542 (App. Div. 1971) 47:1A-I.1. at seq, N.J.S.A. 47:1A-1.1, et seq.; Exe c. Order 69 N.I.S.A.,47:i A-1.1, at seq. 47:1A-1,I, at seq. RIBA. 47:1A- I.1, at Seq. NJ 2C:25-26c. NaS,A. 47:141.1, et seq. Reza& Rah:allot) and Disposition Schedule You have a right to Weal the decision that the document or documents are not publics records. You may take your appeal to the Public Records Council or to the New Jersey Superior Court as prov' J.S.A. 47: IA-6 and 7, Dm= S.. Perth Axabiay ACKVOWLEDGMEN"r I hereby acimowledge that I have received the documents requested except for any documents specifically listed above on which a determination has bean made that the documents will not be provided. If p,sy documents have not been provided, I have received infomration on this form as to the procedures.fot eery appeal of tbe dereentination. bate; Applicant's Signature =WM zoo E 30110d ACIOHY HAN XVd BV:80 in(2/30/90

27 JOHN PAFF, Plaintiff, SUPERIOR COURT OF NEW JERSEY LAW DIVISION: MIDDLESEX COUNTY DOCKET NO.: MID-L V CITY OF PERTH AMBOY and ELAINE M. JASKO in her official capacity as Municipal Clerk and Records Custodian of the City of Perth Amboy Defendants. DEFENDANTS' BRIEF IN OPPOSITION TO PLAINTIFF'S ORDER TO SHOW CAUSE Mark J. Blunda, Esq. Of Counsel & On the Brig/ MARK J. BLUNDA (ID ) APRUZZESE, McDERMOTT, MASTRO & MURPHY, P.C. 25 Independence Boulevard P.O. Box 112 Liberty Corner, New Jersey (908) Attorneys for Defendants LAW OFTFCES.PRUZZESE. McDEErtort 141.s-rito & Hun Pliy. Pxor ssiot t. CCF,,,11,1101. tzo:yerexprocr. Bot.n-rvAnn PA. Box 112 Lrinnrrx ConxeR. N.J. Ingna /13061 SW-Me

28 TABLE OF CONTENTS PRELIMINARY STATEMENT 1 Page No. ESSENTIAL FACTS 3 LEGAL ARGUMENT 5 POINT I PLAINTIFF IS NOT ENTITLED TO THE FEBRUARY 24, 2010 POLICE INCIDENT REPORT UNDER OPRA, AS IT IS A CRIMINAL INVESTIGATORY RECORD EXEMPT FROM DISCLOSURE. 5 POINT II PLAINTIFF IS NOT ENTITLED TO THE FEBRUARY 24, 2010 POLICE INCIDENT REPORT UNDER THE COMMON LAW 8 POINT HI PLAINTIFF IS NOT ENTITLED TO AN AWARD OF ATTORNEY'S FEES 11 CONCLUSION 13 Lew On,scns,earzzEsE. MCDP.RHOTT. MASTRO & MI1RPRy PROrESSIONAL CORPORAIION!a LNDEPENDM+Cr. Bentruan P.O. box Fit L12.9-Tr CaaN Cn. T4, , *AI e

29 PRELIMINARY STATEMENT Plaintiff claims he was wrongfully denied access to various City of Perth Amboy ("City") police records concerning an alleged February 2010 sexual assault, in violation of the Open Public Records Act ("OPRA"), N.J.S.A. 47:1A-1 to 13 and the common law. As the City previously advised Plaintiff upon receiving his April 29, 2014 OPRA request, the records he is seeking are either (a) confidential criminal investigatory records that are not subject to disclosure or (b) documents not in the City's possession. The fact is that the City is in possession of only one document that falls within the parameters of Plaintiffs April 29, 2014 OPRA request- a police incident report dated February 24, This document is not a government record under OPRA and is expressly exempt from disclosure as a confidential "criminal investigatory record" under N.J.S.A. 47:1A-I.I. Plaintiff himself acknowledges in his moving papers that the records he seeks are criminal investigatory records. The City rightfully denied Plaintiff access to the February 24, 2010 incident report under OPRA because it is exempt from disclosure. Furthermore, the City did not make any arrests or file any charges in connection with the alleged incident. Investigation and disposition of the alleged incident was handled by the Middlesex County Prosecutor's Office, not by the City of Perth Amboy. Consequently, the City does not have the information Plaintiff is seeking pursuant to N.J.S.A. 47:1A-3. Nor is Plaintiff entitled to the February 24, 2010 incident report under the corrzn on LAW OFFICES.PRUZitSF., MCDER140 MISTHO & MIJEFIVI. PROFESSIONAL CO2P x INDEFENDEI10E BOULEvAliS F.O. no7 112 I-1111EFTE CORNER. mane law. The need for (1) safeguarding the privacy of sexual assault victims and (2) encouraging victims of sexual assault crimes to come forward and report such incidents outweighs Plaintiffs interest in accessing the police incident report. 120e)

30 The Municipal Defendants therefore request that Plaintiff's Order to Show Cause be discharged and his Verified Complaint be dismissed. LAST OrnCEs.I'lrEIZZ.ESE. MCDERMOTT, MASTRO er MURPHY Pmcm EsSiOmn L. CORPORATION todepeniornce ElOtICERAIIR P.O. Box r2 LIBERTY CORNER. N.J. o7aos {Well 5/ e

31 ESSENTIAL FACTS The following facts are relevant to this matter and are fully set forth in the July 10, 2014 Certification of Elaine M. Jasko ("Jasko Cert") and the July 7, 2014 Certification of Lieutenant Denise Sosulski ("Sosulski Cert."): On or about May , the City of Perth Amboy received an OPRA request dated April 29, 2014 from Plaintiff John Paff, See Certification of Mark J. Blunda, Esq. dated July 9, 2014 at Exhibit 8 (Jasko Cert. at 2 and Exhibit A thereto). In his OPRA request, Plaintiff sought the following records from the City of Perth Amboy: All police incident reports, including supplemental reports, regarding an alleged February 22, 2010 sexual assault by teacher Eric Combs against teacher Kara Sakowski. Copies of all CDR forms or other forms of complaint that were filed as a result of this alleged incident. (Jasko Cert. at 3 and Exhibit A thereto). By way of correspondence dated May 2, 2014, the City of Perth Amboy responded to Plaintiffs OPRA request. Specifically, Plaintiff was advised that the records he was seeking were not being provided because they were criminal investigatory records pursuant to OPRA. Plaintiff was also advised that any CDR forms and complaints should be obtained through the courts. (Jasko Cert. at IT,1 4 and Exhibit B thereto). Thereafter, upon Plaintiffs request, the City confirmed on May 6, 2014 that it has no Law 071,Tcrs,,nruzzEsr. MCDERMOTT. MASTRO & MURPHY PROPESSIONAL Coupoe...ncra indepe ENCt BCTILEW,Ith P.O. Box H rarwrr CovHnt loos) s8o-l77e CDR forms or complaints responsive to his request. (Jasko Cert. at 115 and Exhibit C thereto).

32 The City of Perth Amboy is in possession of only one (1) document responsive to Plaintiffs April 29, 2014 OPRA request- a police incident report dated February 24, See Blunda Cert. at Exhibit 1 (Sosulski Cert. at 3). The Perth Amboy Police Department is not in possession of any supplemental incident reports, criminal complaints, or CDR forms responsive to Plaintiffs April 29, 2010 OPRA request. Sosulski. Cert. at 4. The February 24, 2010 incident report concerns an assault that allegedly took place at 8:30 a.m. on February 22, 2010 at the Wilentz School. Sosulski Cert. at 3. The Perth Amboy Police Department did not make any arrests or file any charges in connection with the alleged February 22, 2010 incident. Sosulski Cert. at 5. O Investigation and disposition of the alleged February 22, 2010 incident was handled by the Middlesex County Prosecutor's Office. Sosulski Cert. at 45. Lew Onicrs PRVZZESt. M cdebhrrr. Massa & MURPHY PRaCSSIONAL Can'ORATIOli arepcntycnce BonLevnao PO. box 112 bararty CarriER. 1a.J. OMB 8908) Aso-17'7e

33 LEGAL ARGUMENT POINT I PLAINTIFF IS NOT ENTITLED TO THE FEBRUARY 24, 2010 POLICE INCIDENT REPORT UNDER OPRA, AS IT IS A CRIMINAL INVESTIGATORY RECORD EXEMPT FROM DISCLOSURE The City of Perth Amboy ("City") is in possession of one document that falls within the parameters of Plaintiffs April 29, 2014 OPRA request- a police incident report dated February 24, As Plaintiff clearly acknowledges in his moving papers, and for the reasons that follow, this incident report constitutes a "criminal investigatory record" under the Open Public Records Act ("OPRA"). See Plaintiffs Brief at 4-5 (requesting that the Court require the City to provide Plaintiff with certain information that must be disclosed when. a document constitutes a criminal investigatory record under OPRA). Accordingly, the incident report is exempt from disclosure. A. February 24, 2010 Incident Report Is Exempt from Disclosure Pursuant to OPRA, "government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions". N.J.S.A. 47:1A-1; O'Shea v. Twp. of W. Milford, 410 N.T. Super. 371, (App. Div. 2009). The exceptions to public access can be found in OPRA itself, "any other statute; resolution of either or both houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; LAN qrpicrs PRUZZESZ-. McDEmmorr. MA.STRO & MURPHY PROTESSMNAL CostronAylog LT.DEPCXIDEKCEBOULZWat P.O. tillt tt Lla -nrry CORNER. N.J. anoa it.05) any federal law, federal regulation, or federal order". Id. OPRA specifically recognizes that "[a] government record shall not include [certain] information which is deemed to be confidential", including but not limited to, a criminal investigatory record. N.J.S.A. 47:1A A "criminal investigatory record" is "a record which is not required by law to be made, maintained or kept on file that is held by a law enforcement agency which pertains to any 5

34 criminal investigation or related civil enforcement proceeding." Id. Any criminal investigatory record is exempt from access under OPRA. Id.: Kovalcik v. Somerset Cnty. Prosecutor's Office, 206 N.J. 581, 591 (2011)(recognizing that criminal investigatory records are exempt from access under OPRA); Serrano v. S. Brunswick Twp., 358 N.J. Super. 352, 365 (App. Div. 2003)(criminal investigatory records are not accessible under OPRA). Here, the February 24, 2010 police incident report that falls within the parameters of Plaintiffs April 29, 2014 OPRA request is undeniably a criminal investigatory record exempt from access under OPRA. Significantly, Plaintiff concedes in his papers that the records he requested in his April 29, 2014 request are criminal investigatory records. See Plaintiffs Brief at 4-5. Moreover, the Government Records Council, the state agency charged with adjudicating denial of access complaints and issuing advisory opinions on accessibility of public records under OPRA, has repeatedly held that police incident reports are criminal investigatory records exempt from disclosure under OPRA. See Certification of Mark J. Blunda, Esq. ("Blunda Cert.") at Exhibit 2 (Carroll v. Middletown Police Department, Complaint No (GRC October 29, 2013)(police incident reports, written narratives prepared by responding officers, and statements from witnesses are criminal investigatory records exempt from disclosure under OPRA)); Exhibit 3 (DeFrancisi v. Town of Secaucus, Complaint No (GRC Dec. 20, 2013)(arrest reports, incident reports, continuation reports, and property and evidence reports are criminal investigatory records exempt from LAW OFFICES PRTIZZESE. MCDERMOTT. MASTRO & MURPHY access)); Exhibit 4 (Michalak v. Borough of Henrietta, Complaint No (GRC Jan. 29, 2013) (finding that incident reports pertaining to an ongoing criminal investigation were Psto,a.siolcAL C , LNDEPENDEIWX. BOVI.M.RA P. Box lie LIBIERTY Cartirat N.J. ote3e not subject to disclosure)); Exhibit 5 (Boyd v. Atlantic County Prosecutor's Office, Complaint No (GRC May 28, 2013). Since the responsive incident report is exempt from

35 disclosure under OPRA, the City did not unlawfully deny Plaintiff access to the incident report. B. Disclosure of Certain Information Pursuant to N.J.S.A. 47:1A-3 Notwithstanding the fact that a record may be exempt from disclosure under OPRA, certain information concerning a criminal investigation must still be disclosed to the public. Specifically, N.J.S.A. 47:1A-3 requires disclosure of the following information: 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; if an arrest has been made, information as to the name, address and age of any victims unless there has not been sufficient opportunity for notification of next of kin of any victims of injury and/or death to any such victim or where the release of the names of any victim would be contrary to existing law or court rule. In deciding on the release of information as to the identity of a victim,the safety of the victim and the victim's family, and the integrity of any ongoing investigation, shall be considered; if an arrest has been made, information as to the defendant's name, age, residence, occupation, marital status and similar background information and, the identity of the complaining party unless the release of such information is contrary to existing law or court rule; information as to the text of any charges such as the complaint, accusation and indictment unless sealed by the court or unless the release of such information is contrary to existing law or court rule; information as to the identity of the investigating and arresting personnel and agency and the length of the investigation; Law OFFICES PRITZZESE. MCDERMOTT. MASTRO & MURPHY PkorAssio.N..i. CoRPaLsilos S LNDEPCHUEHCH 130,31.r.t.RD PA. Box 1r2..mrETT CP,NEA, N.J e information of the circumstances immediately surrounding the arrest, including but not limited to the time and place of the arrest, resistance, if any, pursuit, possession and nature and use of weapons and ammunition by the suspect and by the police; and information as to circumstances surrounding bail, whether it was posted and the amount thereof. [N.J.S.A. 47:1A-3].

36 With respect to the alleged February 2010 incident that is the subject of Plaintiff's request, the Perth Amboy Police Department did not make any arrests or issue any charges. Sosulski Cert. at 5. As a result, the only information subject to disclosure under N.J.S.A. 47:1A-3 is "the type of crime, time, location and type of weapon, if any' and "information as to the identity of the investigating... personnel and agency and the length of the investigation." As is set forth in the Certification of Lieutenant Denise Sosulski, the February 24, 2010 incident report concerns an assault that allegedly took place at 8:30 a.m. on February 22, 2010 at the Wilentz School and the investigation and disposition of the alleged incident was handled by the Middlesex County Prosecutor's Office. See Sosulski Cert. at litlf 3 and 5. Should Plaintiff desire additional information pertaining to the alleged February 2010 incident, any further requests should be directed to the Middlesex County Prosecutor's Office. POINT II PLAINTIFF IS NOT ENTITLED TO THE FEBRUARY 24, 2010 POLICE INCIDENT REPORT UNDER THE COMMON LAW Under the common law right of access, "public records available for inspection include any records made by public officers in the exercise of their functions. As such, they include almost every document recorded; generated, or produced by public officials, whether or not required by law to be made, maintained, or kept on file." O'Shea v. Twp. of W. Milford, 410 N.J. Super. 371, (App. Div. 2009)(internal citations omitted). In order to 0'01.1 CMS PRUZZESE. MCDERWOTT, MASTRO Sz MURPHY PROrESSIOHAL COW INIDEPENIDCt. Docxxv,ao P.O. box Era LmetTY CURNEA. N.J. tarroe (oal suo.i-tog access documents under the common law, "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