Prisoner’s Appellate Court win also a victory for open public records advocates

A prisoner at the New Jersey State Prison in Trenton has won an Open Public Records Act case at the New Jersey Appellate Court division level that is also a victory for open government advocates.

Prisoner Kevin Conley sought data generated by the New Jersey Department of Corrections regarding federal funding logs that is subject to disclosure under the Open Public Records Act. The Department of Corrections implemented a new data collection system that no longer generates the reports the prisoner routinely requested. The prisoner filed a complaint with the state’s Government Records Council regarding the denial. The Council ruled for the Department of Corrections, saying that the records custodian bore his burden of proof “that no responsive documents exist.”

The Appellate Court reversed that finding this past week, pointing out that federal and state regulations clearly require the Department of Corrections to maintain and keep the type of information the prisoner requested.

“Indeed, the DOC acknowledges that prior to January 2014, it provided appellant with these reports upon request,” reads the decision. “The only argument the DOC advances for denying appellant access to this ‘government record’ is based on the manner the DOC chose to store or maintain this public information. Acceptance of the DOC’s argument would leave the public policy of transparency and openness the Legislature codified in N.J.S.A. 47:1A-1 unacceptably vulnerable to bureaucratic manipulation.”

The Department of Corrections should have considered public-access ramifications before modifying the manner in which it stored public records, the judges said. “Technological advancements in data storage should enhance, not diminish, the public’s right to access government records under OPRA,” reads the ruling.

A government agency cannot erect technological barriers to deny access to government records that were previously available under OPRA, the judges said.

As part of the ruling, the judges also defended the right of the Appellate Division to reverse a decision of the Government Records Council. The Department of Corrections and the Government Records Council, represented in the appeal by the Office of the Attorney General, argued that the court should use a “traditional deferential standard” employed by appellate courts regarding a final decision of a state administrative agency. Under that standard, the court’s  role is limited to determining whether the agency’s decision conforms with relevant law, whether the decision is supported by substantial credible evidence in the record, and whether, in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion.

The judges ruled that such a standard does not apply in the case.The Government Records Council did not conduct an evidentiary hearing or make factual findings based on witnesses’ testimony, and  “merely accepted as reasonable the legal position of the Department of Corrections concerning the denial of the prisoner’s request. ”

When the New Jersey Legislature adopted OPRA, it established two forums for a citizen to challenge a decision of a custodian of government records —  filing a lawsuit in Superior Court and filing a complaint with the Government Records Council  The judges said the two methods of dispute resolution do not have equal legal significance. Although the Government Records Council is authorized to receive, hear, review and adjudicate a complaint filed by any person concerning a denial of access, it can only issue “advisory opinions, on its own initiative, as to whether a particular type  of record is a government record that is accessible to the public.” A decision of the Government Records Council does not have value as a precedent for any case initiated in Superior Court. “Both a final judgment of the Superior Court arising from a summary action filed under OPRA and a decision issued by the Government Records Council may be appealed as of right to this court,” the judges said in the ruling last week.