CAPE MAY – A New Jersey Superior Court judge has rejected a motion to reconsider a decision she made that allows out-of-state residents access to public records under the Open Public Records Act (OPRA).
The Educational Information and Resource Center (EIRC) filed a motion Nov. 11, 2016, asking Superior Court Assignment Judge Georgia Curio, to reconsider her Oct. 24, 2016, decision because the state Government Records Council (GRC) changed its position, saying it is "proper to deny access to out-of-state requestors."
The EIRC also submitted two court decisions they became aware of after their case was presented to Curio where the judges ruled that out-of-state requestors did not have any rights to the benefits of the Act.
Peter Heimlich, an Atlanta, Ga.-based investigative blogger, filed a lawsuit in June 2016 challenging the EIRC's denial for records filed under OPRA because he was not a state resident.
Attorney C.J. Griffin, of Pashman Stein Walder Hayden, represented Heimlich. She specializes in First Amendment law.
At the time, Curio, an assignment judge for the Cumberland/Salem/Gloucester vicinage, joined judges from Ocean and Burlington counties when she ruled that "any person" may request government records under OPRA.
That differed with a decision rendered earlier last year by an Atlantic/Cape May County Superior Court judge who said out-of-state residents have no right to benefits of the Act.
In filing the motion to reconsider, the EIRC waived oral arguments, submitting a 34-page letter brief with supporting documents that outlined how the GRC had since revised its position, stating that out-of-state requestors could be denied access to OPRA records.
In addition, they cited a variety of court decisions that supported the revised position, including a case against the City of Cape May by Harry Scheeler, a North Carolina resident, who was denied access to city records because the judge said the "state Legislature did not intend that a non-resident, non-taxpaying, out-of-state gadfly" was entitled to its records.
At the time, Scheeler's case was thought to be the first in the state in which a non-citizen had been denied access to public records. Since then, a case in Sussex County and another case involving Scheeler and Burlington Township had the same outcomes.
Those two cases were also submitted by the EIRC in support of their motion to reconsider the case.
In rejecting the motion, Griffin said the judge indicated that the two cases could have been presented at the last hearing, but was not, and that she was not going to change her position because the GRC changed its position, especially since the GRC's decision is not binding on her in any way.
According to its website, the GRC "is committed to making the Open Public Records Act (OPRA) work for the citizens of New Jersey. Since the law’s inception, the GRC has worked hard to make government records more easily accessible to the public."
"I think the GRC got it wrong and that Judges Curio, Bookbinder, and Troncone got it right," Griffin said, referring to decisions by those judges supporting out-of-state requestors.
"The problem with the GRC's decision is that it bars out-of-state journalists like Mr. Heimlich from filing and it may also bar in-state media entities since they are not 'citizens of this state.' The Legislature surely did not mean that.
"I think the GRC also has a conflict of interest in a way," she added. "Saying that non-citizens cannot use OPRA means that they no longer have to deal with complaints from Harry Scheeler and a couple of others who file complaints frequently. It lessens their workload."
Heimlich has maintained a blog since 2010, mostly about fraud and/or ethical misconduct, which can be found at http://medfraud.info.
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