Open government advocates and journalists won a major victory today as the New Jersey Appellate Division ruled that the right to obtain information under the state’s Open Public Records Act is not limited to residents of the state.
The ruling is important for journalists because making government records open to all requestors, regardless of their geographic location, enables out-of-state news organizations to uncover and report on information of importance to this state’s residents. There are also government watchdogs who split their time between New Jersey and homes in other states like Florida or who have retired and moved out of state but still have ties to the area and track the decisions of government entities.
Under the state’s Open Public Records Act (OPRA), “citizens” are entitled to records. The court ruled that “citizens” is meant to apply to the general public.
“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,” reads the decision.
Harry Scheeler, an open government activist who moved from New Jersey to North Carolina in 2014, submitted an OPRA request seeking records about legal bills from the Atlantic County Municipal Joint Insurance Fund. The fund administrator and its records custodian refused to provide what they characterized as “confidential and privileged memos” for ongoing litigation. After Scheeler filed an OPRA lawsuit in Burlington County, they contended that he had no standing to request documents under OPRA because he was not a citizen of New Jersey. The judge in the case concluded that the right to request public records under OPRA is not limited to New Jersey citizens. The judge also found that the “confidential memos” were not memoranda at all, but were simply detailed legal invoices. The judge concluded that OPRA required the clerk for the public agency to produce them, but he permitted the clerk to redact any attorney-client privileged material or work product. The judge also awarded Scheeler counsel fees for the litigation.
Scheeler filed a similar OPRA lawsuit against the City of Cape May, seeking records concerning government spending on legal services. In that case, another trial judge dismissed the complaint, reasoning that only New Jersey citizens had standing to request public records under OPRA. The judge said he was particularly concerned with the burden Scheeler’s requests placed on local government resources, asking rhetorically: “At the time the OPRA was adopted, did the members of the New Jersey Legislature contemplate that they were authorizing an out of state gadfly to repeatedly bombard local governments with demands to produce public records?”
The Lawyers’ Committee for Civil Rights Under Law, a national non-profit civil rights organization, later 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 the organization’s OPRA complaint against the board because the group is not based in New Jersey.
But the Appellate Division judges said in their ruling today that it is clear that OPRA does not refer to just New Jersey residents. The law details information that should be kept private, including citizen medical records, for example.
“It would produce an absurd result if the government were only required to protect personal information of New Jersey residents and could freely disseminate medical records, school transcripts, and other personal information of out-of-state residents,” reads the decision. “It is more logical to construe the term ‘citizen’ as simply meaning ‘a person’ or ‘an individual’.”