Media requests under the Open Public Records Act (OPRA) for the $10,000, taxpayer-funded investigation, which was conducted by former Haddonfield borough commissioner Edward Borden of the law firm Earp Cohn, have been blocked as attorneys for McLoughlin and the district argue over whether the report legally can be made public.
At least two OPRA requests were made to the district in September, said Beth Ann Coleman, business administrator for the Collingswood school district; one of them by Collingswood Patch, and another by The Retrospect.
Such requests have a 10-day fulfillment term under the law, but the district requested an extension of that time period on the advice of its lawyer, Collingswood school district solicitor Joseph Betley of Capehart Scatchard.
"This legal review is necessary due to the opposition filed by the attorney for Mr. McLoughlin protesting the release of the Borden report under OPRA and the threat of litigation to prevent the release of the report," Coleman told Patch in a September 10 letter.
On Tuesday, Coleman said that the report was still unable to be released pending the outcome of a declaratory judgment request filed by Betley in New Jersey Superior Court.
"Our attorney went to Superior Court," Coleman said. "We asked the judge to decide; we're waiting to hear."
Katherine D. Hartman of Attorneys Hartman in Moorestown—who, together with Charles Nugent, has taken over from attorney Dennis G. Young in handling McLoughlin's case—told Patch that she believes the Borden report is not subject to OPRA.
In Hartman's reading of the law, the investigation is protected by exemptions to the same New Jersey statute governing the release of information in a harassment or discrimination case.
"A sexual harassment investigation is not a public record; investigations under the NJ law against discrimination are under the exact same statute," Hartman said.
"That’s why I believe it’s not a record that’s disclosable."
Hartman said that Betley's request for a declaratory judgment is "an appropriate thing to do" on behalf of the board.
"I don’t have any objection to it," she said, "[but] I don’t think this investigation falls under the public records act."
Furthermore, although the report was taxpayer-funded, Hartman said, she objects to the idea that it provides an independent analysis of the case.
"I’ve seen it," she said. "I don’t agree it was to get to the bottom of the case; I think it was to shield the board from liability. I don’t believe it’s remotely an independent investigation."
When asked whether Hartman believed the case could still be settled between McLoughlin and the school district, she pointed out that "less than one percent of all cases actually go to trial" in New Jersey.
"It’s always possible that a case could settle at any time," she said. "Could we go to a mediation? Sure we could. Generally a case isn’t settled immediately after a complaint’s filed."
On August 1, McLoughlin filed suit against the Collingswood school district, Superintendent Scott Oswald, Collingswood High School Principal Edward Hill and Athletic Director Ronald Hamrick in New Jersey Superior Court.
The former coach claims he was not asked to return to the team "as a direct result of his objection to racist practices and acts."