WALL TOWNSHIP — A Superior Court judge has ruled that the Wall Township Board of Education has improperly withheld digital information sought by a school district resident under New Jersey’s Open Public Records Act [OPRA].
In his Oct. 11 ruling, Judge Henry P. Butehorn ordered the Wall BOE custodian of records, Brian Smyth, to release the contents of a Google drive which were sought in OPRA requests by Wall resident Betsy Cross.
“Defendants shall search for the specified record contained within the March 24, 2023 OPRA request … and release said record to the plaintiff immediately upon completion of the search,” the judge wrote.
Ms. Cross, a frequent critic of the Wall school board and the school district’s administration, filed a March 24 OPRA request seeking “the entire contents” of a Google drive folder which she said was included in an email to School Superintendent Tracy Handerhan from Adam Nasr, in his capacity as vice president of the board, on Dec. 1, 2022.
Ms. Cross first filed an OPRA request on Dec. 8, 2022, requesting the email logs of Ms. Handerhan; Mr. Smyth and his executive secretary, Dawn Choma; Mr. Nasr and BOE member Ralph Addonizio from Nov. 28, 2022 to Dec. 7, 2022.
Mr. Smyth took three months to respond to Ms. Cross’ OPRA, issuing five time-extensions before releasing the requested information on March 17.
On March 24, Ms. Cross submitted a new OPRA seeking “the entire contents within the Google Drive folder,” referenced in a Dec. 1, 2022 email from Mr. Nasr to Ms. Handerhan, which included a hyperlink entitled “Folder shared with you FB.”
After her request was denied, Ms. Cross filed suit against the Wall Township BOE, Mr. Smyth, Mr. Nasr and Superintendent of Schools Tracy Handerhan in May 2023.
Mr. Smyth, who said he had received a total 128 OPRA requests from Ms. Cross in 2022-23 alone, claimed her OPRA request was denied because “[she] did not make a request for a specific document or documents,” he said in his defendant brief statement dated Aug. 4.
Ms. Cross told the Coast Star that the majority of her OPRA requests pertained to the Central School trailer investigation — a nine-plus month investigation conducted by then board attorney Anthony Sciarrillo into the two used trailers that housed four classrooms at Central Elementary School trailers since 2007. The trailers were removed over the summer in 2020 after deterioration was discovered during a repair project in 2019.
“The electronic folders on Google Drive are not static objects,” said Mr. Smyth in the statement. “There was no way to determine the folder’s exact contents on Dec. 1, 2022, when Ms. Cross submitted her request on March 24, 2023.”
“Neither the OPRA request, Mr. Nasr’s email, nor the hyperlink provided any reference to a specific document, so I had no document description for which I could search to satisfy the OPRA request,” said Mr. Smyth, labeling Ms. Cross’ request for the google folder’s “‘entire contents’” as an “improper blanket request.”
“Responses to OPRA requests are based on guidance provided by the GRC [NJ Governments Record Council] as well as prior decisions of the GRC and the New Jersey Superior Court,” said primary board counsel Athina Cornell in an Oct. 18 email addressed to The Coast Star.
Hon. Butehorn determined Ms. Cross’ request was “not overly broad.”
“If the court were to reach a different conclusion, a person would not be able to gain access to the government documents therein,” the judge wrote. “Government officials would then be able to hide documents from the public by maintaining them in a folder on their server and simply passing the folder between themselves by email. That outcome would go against the purpose of OPRA ‘to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process,” said Judge Butehorn in his opinion.
Reacting to the ruling, Ms. Cross told The Coast Star, “You can’t hide public documents, no matter what way you try and do it … you can’t. They [Wall BOE] keep trying to come up with ways to not give out public information, and this was their latest attempt.”
The judge dismissed complaints against defendants Mr. Nasr and Ms. Handerhan in addition to ordering the BOE to compensate Ms. Cross for accrued attorney fees.
The Wall BOE was represented by Eric Harrison of Methfessel & Werbel, a separate law firm from Cornell, Merlino, McKeever and Osborne which serves as the board’s primary counsel.
Methfessel & Werbel currently serves as the board’s insurance law firm.
In response to the outcome of the ruling, Mr. Harrison told The Coast Star, “We respect the ruling, as we will abide by it. Since September 2019, Ms. Cross has made no fewer than 430 OPRA requests, and we have provided to her no fewer than 86, 900 pages of materials. This case was not about a refusal to provide documents. It was about confusion over the technology through which the documents were stored. The judge has now resolved it in favor of Ms. Cross’ interpretation, and we are going to abide by his decision.”
“The blanket request for a copy of everything sitting within a google drive was interpreted by the board as not sufficiently specific to identify with public records,” said Mr. Harrison.
Mr. Harrison explained that his firm, Methfessel & Werbel, was brought onto the case as this was a third party “administrative” claim covered by liability insurance “for which the board has insurance coverage,” said Mr. Harrison.
“The board is wisely covering [through their carrier, the Diploma Joint Insurance Fund] itself for any attorney fees that may be awarded to Ms. Cross’ attorney. If they didn’t use my firm, then Wall would be paying Ms. Cross’ attorney,” said Mr. Harrison. The insurance company is going to be doing the compensating on its [the board’s] behalf,” he said.
“Mr. Smyth cannot be trusted,” said Ms. Cross in response to the court ruling.
“The lengths that they [Wall BOE] go to to hide information is really disturbing…. Until the attorney general comes in, nothing is going to change,” said Ms. Cross. “You can’t hide public documents no matter what way you try and do it … this is just their latest attempt,” she said.
Ms. Cross has since received the contents of the google share drive, according to the letter Methfessel & Werbel addressed to her on Tues., Oct. 17.
In the letter, Attny. Harrison said that documents provided were released “in full” by the “administration.”
“The contents of this specific google folder are social media posts by Ms. Cross that are false and defamatory,” said Ms. Cornell in an Oct. 18 email to The Coast Star.
“As for the requirements of the Court’s Order, the District already provided the documents in the folder and therefore there is no further action needed. Contrary to the most recent misstatements by Ms. Cross, a plain reading of the Court’s Order clearly states that a ‘certification’ is not required when documents are provided,” said Ms. Cornell.
The Coast Star received the contents of the Google Drive folder on Oct. 20 from Mr. Smyth, which contained thirteen pages of screenshots of facebook posts from Ms. Cross and three other Wall residents on the Wall Township Locals Facebook page.
Mr. Nasr had specifically circled Ms. Cross’ posts questioning Mr. Smyth’s involvement in the purchase of the used Central School trailers in 2007; where Ms. Cross, in conversation with another resident, questioned whether Mr. Smyth had ever agreed to be interviewed by the Monmouth County Prosecutor’s Office, then interim superintendent Henry Cram or then board of education attorney Mr. Sciarrillo after such investigations found the trailers to be riddled with mold. Ms. Cross also questioned Mr. Smyth’s ability to oversee the district’s $66 million school referendum school improvement project, which was passed in Dec. 2022.
“Unfortunately, Ms. Cross continues to weaponize OPRA to advance what appears to be her own personal agendas, conspiracy theories, and false narratives. In the most recent matter, Ms. Cross’ OPRA request did not seek documents as required by the law. Rather, it sought a google drive link shared on a specific day and at a specific time. The existing GRC decisions at the time found that folders are not documents and are outside the scope of OPRA. Here, the New Jersey Superior Court interpreted OPRA to expand the demands on records custodians to include google folders,” she said.
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