Response to NJ Law Journal Article

I am writing in response to Jonathan Frodella’s article that appeared in the January 17th, 2019 edition of the New Jersey Law Journal entitled “Victims of Serious Crimes Need More Protection Under OPRA.”

Mr. Frodella - whose article was written from the perspective of an attorney that advises municipal clerks - contends that services that automatically publish public records requests and responses such as OPRAmachine, which I founded in 2017, serve to create a “complication” for custodians of records by not requiring individuals to certify whether or not they were convicted of an indictable offense due to the remote possibility of a convicted criminal requesting information about their victims.

“Online services that automatically publish government records to the world have complicated this issue further by potentially reframing the analysis of victims’ privacy interests,” Frodella says.

When I first launched the OPRAmachine service, our default request template included language that allowed individuals to certify whether or not they were convicted of an indictable offense. However, after discussing the necessity of including this certification with our legal team, we decided to remove it at their recommendation to protect the privacy interests of our requestors and in recognition of the fact that this is not a concern for the overwhelming majority of the thousands of public records requests that have been processed by our service.

Indeed, OPRA does not limit the right of convicted felons to file OPRA requests. Even currently incarcerated inmates have a right to file OPRA requests. Therefore, there is no reason why a person would need to disclose their conviction status in order to obtain the overwhelming majority of government records. As such, including it on our forms would be extraneous.

As the OPRA statute is written now, N.J.S.A. 47:1A-2.2 might permit a government agency to ask the requestor about their conviction status given the context of their request. However, this should take place only in the rare circumstances where they need to ascertain whether the person was seeking records “pertaining to the person’s victim or the victim’s family.” Otherwise, there is no reason why a requestor would need to reveal whether or not they have a conviction history.

Against that background, we chose to follow the advice of our legal team and drop the criminal conviction certifications from the default request template on OPRAmachine last year. So, while there may be potential concerns about the small chance of OPRA custodians releasing records to perpetrators of serious crimes, this is a concern that only applies to an infinitesimally small amount of requests. Records custodians should not throw the baby out with the bathwater and assume the worst about services that automatically publish public records online because of this remote possibility.

It is settled case law that the documents and records released by custodians of records are themselves government records subject to disclosure under our state freedom of information law. See Scheeler v. Office of the Governor, 448 N.J. Super. 333 (App. Div. 2017), so in line with the public policy of transparency codified in OPRA, there is absolutely no reason why public records requests and responses should not be published online for the benefit of the public.

In a perfect world, the innovative model adopted by OPRAmachine would be the default for all government agencies so that the public can be kept apprised of the activities of the bodies they support with their hard-earned tax dollars. That is what my work has centered on for the past two years.

I created OPRAmachine in response to the dismal state of affairs for compliance with the Open Public Records Act in New Jersey. My own past experiences dealing with state & local government gone awry in my capacity as an independent journalist and transparency advocate have informed my opinions about the law’s implementation and state of compliance in New Jersey.

For a representative sample of some of the OPRA cases I was involved in where government agencies were found to have broken the law, see Rozzi v. Lacey Township Board of Education, GRC complaint 2015-224, Rozzi v. Ocean Cty. Prosecutor’s Office, GRC complaint 2015-250 and Libertarians for Transparent Government v. New Jersey State Police.

Don’t just take my word for it: A 2015 study released by the Center for Public Integrity gave New Jersey a “D” grade in transparency and accountability and an “F” for public access to information.

That is unacceptable. Our state can and must do better, and right now OPRAmachine is one of the only platforms that is pushing back against the current lack of transparency and accountability in New Jersey government by publishing public records and tracking compliance with the law. Government agencies at all levels serve an important purpose by enforcing the law. It’s only fair that they comply with their statutory obligations to disclose public records under OPRA and respond to legally valid requests such as those facilitated by my service.

As a result of the activity on the site, we are producing the only statewide dataset that is tracking compliance with the law by type of government agency, including state offices, counties and independent authorities. Officials must be more proactive in fulfilling their transparency obligations to the public that they serve, and OPRAmachine is an important tool for remedying the current climate for transparency in the Garden State.

The thesis of Frodella’s commentary would make one think that there is an urgent problem affecting victims of crime. Contrary to his assertions, the sky is not falling for victim privacy. The truth of the matter is that the concerns raised by Mr. Frodella only apply to an exceptionally small number of requests. Records custodians are properly charged with the responsibility of determining whether a request is being submitted by an individual with a conviction seeking information pertaining to their victim(s). Additional exemptions are not necessary, nor should they be added in future iterations of OPRA reform bills pending in the legislature, as they risk diluting the effectiveness of OPRA as an accountability tool.

While I am grateful for Mr. Frodella’s suggestion that agencies subject to OPRA be more “user friendly,” his advocacy of agencies emphasizing the use of official paper forms is problematic for those concerned with transparency. That remedy is at best anachronistic, and at worst, a way for local governments to be even less transparent by keeping public records requests hidden from the public at large, turning back the clock on recent advances if they were to be adopted.

While Frodella says that government agencies should emphasize the use of official forms, he correctly stops short of advising governments that the use of an official form should be required. Forcing requestors to fill out a paper form is archaic, reactionary and a waste of paper as electronic records have become ubiquitous. Some records custodians attempt to ignore the court’s decision in Renna v. Cty. of Union, 407 N.J. Super. 230 (App. Div. 2009) and inaccurately claim that they will not process an OPRA request without an official form being completed.

The Appellate Division in Renna made it crystal clear that OPRA requests cannot be denied solely on the basis that they are not submitted on an agency’s official form. The OPRAmachine database has numerous examples of this, and fortunately, in many instances requestors pushed back against these additional bureaucratic hurdles erected by clerks to hinder access to public information.

Government agencies must embrace the public policy considerations that have been enshrined in OPRA by taking steps to be proactively transparent. We must change the culture of government agencies from viewing OPRA as an unfunded mandate from Trenton. OPRA is an important check and balance and a vehicle for ensuring government accountability.

Frodella also mentioned how the pending case Coombs et al. v. Cty. of Monmouth may impact OPRAmachine and other similar platforms. I joined as a plaintiff in the Coombs matter to stand up for the users of my platform who have been negatively impacted by the unprofessional behavior and bad faith exhibited by Monmouth County officials.

The Coombs matter made it to Monmouth County Superior Court’s docket when one of the county’s employees negligently failed to redact private information concerning County Prosecutor Christopher Grammicioni. Immediately upon being notified of the breach, we removed the documents upon being contacted by an assistant county counsel. Our stated terms of service request that government agencies put their reasons in writing for requesting the removal of documents, but we waived it due to exigency of the situation. There’s no denying that the entire situation could have been avoided had the county properly reviewed the documents before releasing them to the public.

By Monmouth County’s own admission in subsequent court filings, this incident was not the first time that county employees failed to properly redact OPRA documents. The only difference is that because OPRAmachine existed, the public was able to know that the breach had occurred.

How many other times have government agencies unwittingly compromised private information without the public having the benefit of knowing? That is the real question that should be asked here.

The Monmouth County government and its legal counsel instead chose to attempt to craft a new exemption by administrative fiat in response to the negligence and lack of care exercised by their employees, likely to save themselves future embarrassment and exercise additional control over the OPRA process as is typical in the capricious fiefdoms that have sprung up in New Jersey state & local government.

As our attorney Walter Luers wrote in a brief for the case “Attempts by public agencies to force records custodians to use specific forms or to make followup requests after they have been denied access to records or to limit the right to make a request to citizens of this State have failed. This case is no different.”

Their new legally specious OPRA policy says that the county will deny any OPRA request solely on the basis that the email address indicates the records will be automatically published on the internet. In addition to demonstrating an ignorance of how modern technology works, the policy adopted by Monmouth County contravenes both the letter and spirit of the Open Public Records Act.

Additionally, as the court observed in Asbury Park Press v. Ocean Cty. Prosecutor’s Office, 374 N.J. Super. 312 (Law. Div. 2004):

Clearly, the court must always maintain a sharp focus on the purpose of OPRA and resist attempts to limit its scope, absent a clear showing that one of its exemptions or exceptions incorporated in the statute by reference is applicable to the requested disclosure. The salutary goal, simply put, is to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process.

This, the county cannot do, so both myself and another administrator of the site joined as plaintiffs in OPRAmachine user Jennifer Coombs’ lawsuit to ensure that the Monmouth County government cannot be permitted to shirk their responsibility to comply with the law just because they don’t like the fact that public records requests are being shared with the very public they exist to serve.

There is no recognized legal precedent that supports the gravamen of the legal theory advanced by Monmouth County to justify their policy, which is an unprecedented blow to transparency in county government and as such, this policy perpetuates a manifest injustice to users of OPRAmachine and those similarly situated.

In conclusion, transparency and accountability are both vital to ensuring the health of a thriving democracy, both locally and nationally. Government agencies must fulfill their disclosure obligations so that voters may be fully informed when voting in elections and be knowledgeable of the activities of local officials who govern on their behalf. When they fail to do so, they do a disservice not only to their citizens, but to the values that our nation was founded on.

As I pledged in my press release announcing our case against Monmouth County last fall, our team is prepared to mount a campaign of litigation against any agency that challenges the validity of requests submitted through the OPRAmachine service.