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HACKENSACK – Does a person who is not a resident or domiciliary of New Jersey have standing to file a request for public records under the Open Public Records Act (OPRA), or are rights under OPRA restricted to "citizens" of New Jersey?

That question was at the crux of three appeals before the Superior Court of New Jersey Appellate Division recently, including one appeal that involved the City of Cape May and an out-of-state "gadfly." He sought records concerning government spending on legal services.

In a 14-page decision delivered May 16 by Susan L. Reisner, presiding judge, Appellate Division, the court concluded that the reference to "citizens" expresses the "Legislature's general intent to make New Jersey government records open to the public, rather than expressing an intent to limit access to only New Jersey residents or domiciliaries."

The appeals case was submitted Dec. 5, 2017, and decided May 16 by Judges Reisner, Richard S. Hoffman, and Jessica R. Mayer.

According to their decision, the judges noted that "because the more specific provisions of OPRA refer to any person, and because OPRA is to be construed broadly to achieve the Legislature's over-arching goal of making public records freely available, we conclude that the right to request records under OPRA is not limited to 'citizens' of New Jersey."

The decision affirmed one case and reversed the orders of two others, including the one involving "gadfly" Harry Scheeler, of Concord, N.C., and the City of Cape May. Scheeler was also a party in the case that was affirmed.

“The Appellate Division’s decision is a significant victory because allowing out-of-state requestors to utilize OPRA, whether they are individual persons or media companies, advances transparency and benefits the citizens of our state,” stated attorney C.J. Griffin, of Pashman Stein Walder Hayden, PC, who represented Scheeler.

“Most of my non-media clients, including Mr. Scheeler, routinely distribute the records they obtain from public agencies to the media or otherwise publish them online so that the public can be aware of what their government is doing," Griffin added.

Had the Appellate Division ruled differently, Griffin said out-of-state news agencies would have been precluded from filing OPRA requests in New Jersey.

"Even out-of-state persons who own summer homes or rental homes in New Jersey would have been precluded from filing OPRA requests, even though they clearly have an interest in doing so," she noted.

“A citizenship requirement would put endless obstacles in the way of gaining access to public records, even for citizens,” Griffin added. “This is the only decision that makes sense and that fosters transparency.”

Decision Affirmed

In the case that was affirmed by the ruling, Scheeler had submitted an OPRA request seeking records from the Atlantic County Municipal Joint Insurance Fund, the fund administrator, and its records custodian. Specifically, according to the decision, he sought records concerning legal bills submitted for payment against Hamilton Township, Atlantic County. The defendants had provided some of the records, but declined to provide what they characterized as "confidential and privileged memos" for ongoing litigation. After Scheeler filed an OPRA lawsuit in Burlington County, the defendants contended that he had no standing to request documents under OPRA because he was not a citizen of New Jersey.

In a series of what the appeals judges called "well-reasoned written opinions," the decision noted that "Judge Bookbinder concluded that the right to request public records under OPRA is not limited to New Jersey residents. He also found that the 'confidential memos' were not memoranda at all, but were simply detailed legal invoices.

"The judge concluded that OPRA required the defendants to produce them, but he permitted the defendants to redact any attorney-client privileged material or work product," according to the appeals judges affirming the decision. "Defendants subsequently produced the records, without redaction. The judge also awarded Scheeler counsel fees for the litigation, pursuant to OPRA."

Two Decisions Overturned

In the second case heard as part of the appeal, Scheeler filed a similar OPRA lawsuit against the City of Cape May and Louise Cumminskey, in her capacity as records custodian for the city.

In that case, another trial judge, Nelson C. Johnson, dismissed the complaint, reasoning that only New Jersey citizens had standing to request public records under OPRA.

The judge was particularly concerned with the burden Scheeler's requests placed on local government resources, asking if the Legislature contemplated that it was "authorizing an out-of-state gadfly to repeatedly bombard local governments with demands to produce public records" when it adopted OPRA.

In the third case heard as part of this appeal, the Lawyer's Committee for Civil Rights Under Law, a national non-profit civil rights organization, sought records from the Atlantic City Board of Education concerning school level enrollment and disciplinary data. The same judge who dismissed Scheeler's case against Cape May also dismissed that OPRA complaint on the same grounds.

A Simple Phrase - Not So Simple

In the decision, the judges pointed out that the issue presented in the three appeals revolved around a phrase used in the first paragraph of the law saying that "government records shall be readily accessible for inspection, copying or examination by the citizens of this state."

This created an "ambiguity" which they concluded could be "easily" resolved, however. In cases where a word or phrase is ambiguous, the judges need to consider the context in which the language appears, the language of the statute as a whole, the statute's purpose, and its history. Considering all of these, the judges said they "cannot conclude that the Legislature intended to preclude out-of-state residents from making OPRA requests."

Throughout the decision, the judges cited sections of the law where the term "citizen" is construed to mean "a person" or "an individual" in the broadest sense. They also noted that anonymous OPRA requests are permitted, "which appears incompatible with a state residency requirement."

The judges also pointed out that the Legislature directed "any limitations on the right of access accorded by OPRA shall be construed in favor of the public's right to access. Thus, any doubt about the meaning of the phrase should be resolved in favor of public access."

Empowering Residents

"My purpose as an activist has always been to empower New Jersey residents to influence change in their own right," Scheeler said when contacted about the decision. "The problem I find is that all too often your average resident is not willing to be assertive in demanding change; they expect people like myself or others to do that for them.

"After having so many OPRA victories, then hearing Judge Johnson call my standing for change on behalf of those less empowered as bullying, I kind of just gave up and walked away," he added.

"While I may have prevailed on the merits of the case, the City of Cape May has won a victory in stopping transparency in its tracks, all at the taxpayer's expense. Nothing will ever change in New Jersey until its residents unify in demanding change and holding their elected officials accountable to transparency."

To contact Karen Knight, email kknight@cmcherald.com.

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