This article discusses recent news surrounding records access and mentions some NJFOG activities and resources. Search our website for more on these topics. -NJFOG
www.MyCentralJersey.com | Gannett Co.
Dec. 13, 2015
by Sergio Bichao
(full article here and re-posted below)
We have the right to know what our government is up to. It’s the law.
But public officials in New Jersey have been finding new ways to avoid complying with sunshine laws and open-government advocates fear this may have a chilling effect on holding the powerful accountable.
Among recent examples:
• A Middlesex County judge earlier this year was forced to block release of dozens of police dash-cam videos requested by an activist after a panel of state judges ruled such videos are not public record. The decision contradicted years of precedent holding otherwise.
• The state’s largest media companies are fighting another Superior Court judge’s ruling this year that allowed the Bergen County Prosecutor’s Office to deny a records request without first acknowledging whether the records existed in the first place. That decision also contradicted previous decisions and media lawyers argue that if it is allowed to stand, the public will have a harder time suing agencies that don’t comply with the law.
• John Paff, an activist from Franklin Somerset County, is taking Passaic County to court after officials denied his request for a copy of a settlement agreement that ended a Sheriff’s Office employee’s whistle-blower lawsuit in federal court.
• And while state law only allows someone who requests a document, not public agencies, to file lawsuits, Gannett New Jersey, the company that owns this newspaper, has had to spend thousands of dollars this year challenging a court action initiated by the Middlesex County Prosecutor’s Office, which tried to block release of a 911 call from a case involving police fatally shooting a suspect in Old Bridge citing privacy concerns for the victims. This case is pending.
• And in a new twist, an independent journalist in New Brunswick was slapped with a restraining order and charged with harassment by the wife of a public official after requesting public records from the city.
“Every time I have to fight to get a record, I know there is something there,” said Harry B. Scheeler Jr., an open-government activist from Cape May County who has filed more than 50 complaints against public agencies since 2009 citing violations of the state’s Open Public Records Act, or OPRA.
One of his recent lawsuits, filed with the help of the American Civil Liberties Union, is against Gov. Chris Christie, whose office denied access to records of OPRA requests made by other individuals and reporters seeing information about the George Washington Bridge scandal.
Scheeler often requests records of other records requests as a way to audit an agency’s compliance with OPRA. If he finds that an agency denied somebody else’s request for a reason he doesn’t believe is lawful, Scheeler will duplicate that OPRA request and file a lawsuit if the agency denies access.
In July 2014, a Superior Court judge sitting in Trenton sided with Scheeler but the Christie administration is appealing, claiming that these records should be kept private because to release them would give a competitive advantage to other requesters.
“That’s a tactic I often see. When they want to hide embarrassing content, they claim privacy rights,” Scheeler said. “The government doesn’t have a right to privacy.”
The law as written
Part of the problem, Scheeler said, is that OPRA is a “poorly written law” and the public has had to rely on judges to referee records disputes.
Earlier this year, two bills to expand OPRA stalled in a state Senate committee. The proposals were backed by the state’s media companies, open-government advocates and the ACLU.
The New Jersey State League of Municipalities, an organization that lobbies for local governments and which itself is subject to OPRA, wanted the law changed so that judges would not be required to award legal fees to requesters who win lawsuits and also to allow agencies that prevail in court to recoup their own legal fees. Currently, only a requester can bring a lawsuit under OPRA and only a victorious requester to have legal fees reimbursed by the public.
Speaking at a forum of the New Jersey Foundation for Open Government (NJFOG) in September, Megan Jones-Holt, the executive director of the Flemington Business Improvement District, said that the public shouldn’t assume that records custodians are trying to hide information, and instead urged the public to be patient and cooperative because records custodians are sometimes overwhelmed by the volume of requests.
In 2012, the borough of Flemington had to hire a part-time employee to help the municipal clerk respond to OPRA requests. The most time-consuming request, according to the clerk, was a request by NJFOG for the minutes of every public and closed-door meeting held the previous year.
But Scheeler said some records custodians will lie about the documents they have.
Scheeler was successful in getting the Department of Children and Families, formerly known as DYFS, which investigates child abuse complaints and places children in foster homes, to release copies of lawsuits against the agency and the settlement agreements with their accusers.
“They used to say, ‘We’re not in possession of them.’ That is not an excuse. Otherwise, you can hide records all over the place,” he said.
Another tactic, he said, is to give a requester “the runaround.”
You can’t, for example, request a document from the Attorney General’s Office. First, you have to figure out which of the many divisions of the Attorney General’s Office has that document in its possession. That could take submitting an OPRA request to each of a state department’s divisions.
Is an OPRA request harassment?
A Superior Court judge sitting in New Brunswick in October dismissed a temporary restraining order, an rejected a permanent restraining order, against Charlie Kratovil, the publisher of New Brunswick Today, a newspaper and website that are highly critical of the local government.
The restraining order was requested by Kratovil’s ex-girlfriend, who now is married to a member of the city’s Rent Control Board, after Kratovil filed an OPRA request with the city for emails from 18 officials, including her husband. A reporter for NJ Advance Media was copied on Kratovil’s request.
“I think it’s a problem because Mr. Kratovil is using any chance he can to destroy me and my husband and attack us and harass us,” the woman is quoted as testifying, according to a report on the case by the NJFOG.
“Charlie seems to think that there’s a big conspiracy happening in this city against . . . that somehow because of the fact we have had proper restraining orders that somehow we are co-conspiring with the city.”
While the judge ultimately rejected the ex-girlfriend’s argument, NJFOG believes that the decision “left the door open for future victims to claim that OPRA requests about them or their families constitute harassment.”
“The prospect of facing a domestic violence [restraining order] in response to an OPRA request will chill any records requester who might have had a dating relationship with someone in government,” NJFOG said.
“Domestic violence is a serious issue. The access to public documents is also a serious issue. As is the case where access to records does not infringe on victim’s rights, neither should the protection rightfully afforded to victims of domestic violence be used to prevent the public access to what rightfully belongs to them.”
How to make an OPRA request
Only government agencies are subject to OPRA. Businesses and nonprofit organizations are exempt. To read the text of the law click here.
For basics on the law, including which records are exempt from disclosure, click here.
To make a request, you need to fill out a form and then fax, email or hand-deliver it to an agency’s “custodian of records.” For municipalities, the custodian is the municipal clerk. For school boards, the custodian would be the business administrator.
While some clerks may ask that you fill out the request on their official forms, this is not required. You can write your own form as long as it has all the required fields.
You can download the state’s model request form here (just fill in the blanks) or use this automatic letter generator from the Student Press Law Center.
To request records from a state agency, visit www.nj.gov/opra and use the online form.