Appellate Court Hands Mason A Victory

APPELLATE COURT HANDS VICTORY TO MASON IN CELL PHONE RECORDS CASE

Burden of Proof For Denying Records is On the City

VICTORY FOR TAXPAYERS  

HOBOKEN – A New Jersey Appellate court today handed a victory to the people of Hoboken by agreeing Councilwoman Beth Mason in her pursuit of city cell phone records, saying the city failed at trial to justify its actions to withhold public cell phone records and its claim of confidentiality. 

The Appeals Court remanded the case back to the trial court to determine whether the City could meet the burden of proof under the Open Public Records Act and the common law to justify its actions to withhold public records 

Mason had sought records since August 2005 on the monthly use of cell phones by city employees. After filing an OPRA request, the city eventually provided records that did not include information about individual employees or phone numbers called by the public employees.

The city, according to the Appellate Court, failed to explain to Mason why any information besides the telephone numbers called was redacted. The Appeals Court also said the trial court erred in dismissing the complaint.  

The Appeals Court noted that the OPRA law requires the custodian of public records to “state the specific basis for the denial of access.”  The burden for proving that denying access for information is on the public agency, added the court. 

In remanding the case to the Superior Court, the Appeals Court said the city must attempt to meet its burden of establishing that their redactions of the bills are authorized by both OPRA and the common law.  

Mason said she was happy with the decision, but that she is concerned that the effort by the city to withhold cell phone information will continue. 

“I am not trying to damage any legitimate confidentiality by the administration. I am just trying to find out where the taxpayers’ money is going,” said Mason.    

Mason originally sought the records prior to being elected to the council in 2007. She was then and remains concerned about the cost to taxpayers of cell phone use. Since she has been a member of the council Mason has learned that the city has at least three different cell phone service providers and has issued scores of cell phones to employees without an apparent and identifiable city cell phone policy.

BILLS, BILLS, BILLS

She says each month the council is presented with bills totaling thousands of dollars for cell phone usage with no explanation of what the bills are for.   

 “I have examples of individuals using city-owned cell phones for calls to Las Vegas, Hawaii and West Palm Beach, Florida,  I don’t know that the city is doing business with anyone in Las Vegas or Hawaii or why the calls are made during work hours and why taxpayers should be paying for such calls,” said Mason    

In one case, said Mason, one employee racked up more than 11,000 minutes in cell phone usage in a single month,   

“My concern is that there may be city employees abusing cell phones paid for by city taxpayers,” said Mason. “I think it is important that we – the taxpayers – know that the phones are being used for city business and not to make long distance personal calls.” 

POLICY CONCERNS

Since 2005, said Mason her concern has grown to include the lack of a clear city policy about cell phones. “What’s the policy that determines which employees get cell phones and why? Why do we have four different cell phone providers? Wouldn’t it be less expensive if we had one provider so that employee to employee call would be free?” asked Mason. 

The councilwoman also said she is concerned about the reimbursement policy that city uses to collect money from employees that use their city cell phone for private purposes. 

 “I am told that city employees are supposed to reimburse the city for the unofficial use of their cell phones.  Yet, I have no evidence that such a reimbursement policy truly exists or that anyone in city hall is assigned to make sure that city employees actually reimburse the taxpayers for their personal use of the cell phone,” said Mason. 

 “I’m not even sure there is a method to check cell phone records of employees or an account designated for the reimbursement funds,” added the councilwoman.     

Mason said her request for cell phone records boils down to a matter of accountability. “Whether it is city cell phones or E-Z Pass records or travel expenses – someone has to be held accountable for how the taxpayers’ money is spent,” said Mason. 

 “There seems to be a very lax attitude at city hall about using public money to pay for expenses rung up by employees and government officials. These things, like cell phones, are not entitlements,” she added.