The American Civil Liberties Union of New Jersey has filed a lawsuit in Mercer County Superior Court challenging the New Jersey Department of Health’s refusal to provide public records regarding the development and implementation of state policies and protocols about exposure to Ebola.
The ACLU made a request on Oct. 30 to the New Jersey Department of Health under the state’s Open Public Records Act for emails and other correspondence from specific officials in the Department of Health that contained several key words, including Ebola, EVD, quarantine, isolation or screening. The request also sought correspondence with county departments of health.
The state requested several lengthy delays to respond to the request, including a final demand for a delay on Dec. 22, at which time the ACLU-NJ gave Jan. 15 as the absolute deadline for a response.
Then on Jan. 14, the records custodian for the Department of Health denied the ACLU request, alleging it was overly broad and required research, and also suggesting that the records sought fell under OPRA exemptions for material that is advisory, consultative or deliberative.
“The department’s refusal is unjustified because the request was very specific,” said Ed Barocas, legal director of the ACLU-NJ. “Not only did it take them ten weeks to respond, but the department refused to conduct a simple search of its computer files.”
The lawsuit filed late Monday challenges the denial on several counts, especially the state’s contention that the request wasn’t specific enough and that a key word search of email is “research” that would require creation of a new government record. The ACLU notes that OPRA does not permit a records custodian to issue a blanket rejection of all emails as falling within the deliberative material exemption to OPRA.
The ACLU-NJ also argues that, given that the state considered the request itself invalid, it clearly engaged in delay after delay without justification, in violation of OPRA. Since it believed the request invalid, the department should have issued a denial soon after receipt of the request, rather than making the ACLU wait two months for that rejection and making it appear that a search for records was occurring during that time.
The lawsuit asks the court to declare the state in violation of the Open Public Record Act, levy a fine and compel the defendants to immediately provide copies of the requested records.
“The State of New Jersey must be transparent about the scientific information and health policy thinking used to formulate and implement these statewide rules,” ACLU-NJ Executive Director Udi Ofer said. “The public must be assured that these policy decisions are being guided by science, not fear.”