Rare common law right of access case where portions of two documents regarding a pension fraud investigation may have to be disclosed. -NJFOG
By S.P. Sullivan
NJ Advance Media for NJ.com
November 12, 2015 (updated November 13, 2015)
(Article here and re-posted below.)
The two-judge panel found on Thursday that the state had wrongly withheld confidential documents from the website New Jersey Watchdog, which has been investigating Guadagno’s involvement in the pension case stemming from her time serving as Monmouth County sheriff.
Mark Lagerkvist, an investigative reporter for the site, has been seeking documents from a state Division of Criminal Justice inquiry into the hiring of Michael Donovan, the county’s former chief warrant officer who is currently listed as an undersheriff.
A year before she became Gov. Chris Christie’s running mate, Guadagno hired Donovan, a retired investigator with the Monmouth County Prosecutor’s Office, under the title “Sheriff’s Chief.” But a 2010 report from the website found documents suggesting Donovan’s title had been changed in order to avoid paying into the Police and Firemen’s Retirement System.
The Attorney General’s Office began investigating the alleged double dipping scheme at the request of the pension board in 2011, and Lagerkvist filed a records request seeking documents related to the case.
After he was denied, he filed suit under the state’s Open Public Records Act and common law right to access, and last year, Superior Court Judge Mary C. Jacobson ordered the release of some of the requested documents. However, Jacobson kept some of the records secret, ruling that their release might have a chilling effect on future public corruption investigations.
In the appeals decision, Judges George Leone and Carol Higbee called Jacobson’s ruling “an abuse of discretion.”
“We cannot agree that the fact the investigation concerned possible sensitive issues of public corruption weighs against disclosure,” the judges wrote in their decision. “In cases involving allegations of public corruption, transparency and the public’s right to know are particularly important.”
The judges ordered the release of two documents: a 2011 letter from the pension system requesting the Division of Criminal Justice investigation, and a 2012 letter from the agency’s corruption bureau to the pension system providing an update on the case.
A third document, an internal memo from the investigation, remains sealed.
“We don’t know what’s in the records yet,” Lagerkvist said in a telephone interview, noting that the documents remain sealed for another 45 days. “We’re disappointed that we didn’t get more records, but at least we made progress here.”
A spokeswoman for Guadagno referred questions to the state Attorney General’s Office, which declined comment. A spokeswoman for the the sheriff’s office did not respond to a message seeking comment Thursday.
Lagerkvist’s report on the ruling said the investigation had been “riddled by a major conflict of interest” because Guadagno is a former deputy director of the Division of Criminal Justice.
“When it comes to this sort of thing, sunlight is the best disinfectant,” he told NJ Advance Media. “If there’s so many secrets around a corruption investigation, how do you know the investigation is not corrupt?”