Judge Decides OPRA Case in Cape May’s Favor

ATLANTIC CITY – A Superior Court judge has determined that a North Carolina man has no right to access City of Cape May records under an Open Public Records Act (OPRA) lawsuit because the state Legislature did not intend that a “non-resident, non-taxpaying, out-of-state gadfly” be entitled to its benefits.
Superior Court Judge Nelson C. Johnson issued his findings Feb. 19 in the lawsuit filed by Harry Scheeler against the City of Cape May and City Clerk Louise Cummiskey, in her capacity as city records custodian.
It is the first case in the state in which a non-citizen has been denied access to public records.
Scheeler, a former New Jersey resident who relocated to North Carolina, has said that he was acting on behalf of a number of Cape May residents in assisting them in obtaining public records information, mostly related to the police department compensatory time issue with now-retired Lt. Clarence Lear and other police matters involving former Police Chief Robert Sheehan.
Sheehan was demoted to captain about a year ago. Scheeler submitted several OPRA requests to obtain records “pertaining to several government practices, mostly with regard to government spending on legal services.”
Various records were requested on five separate occasions since July 2015; while some were provided, others were not and still others were provided with redacted or edited information. The city filed a motion to dismiss the lawsuit claiming Scheeler had no standing to request public records nor file the lawsuit because he is not a citizen of New Jersey.
Since the judge determined Scheeler was not entitled to the records he was seeking because he is not a resident of New Jersey, the subsequent complaint asking for the missing or redacted information will not proceed.
However, Scheeler’s attorney, C.J. Griffin, of Pashman Stein of Hackensack, indicated Feb. 22 that they would be appealing Johnson’s decision to the Appellate Division.
In making his 12-page decision, Johnson explained that the question before the court was whether the members of the New Jersey Legislature contemplated that they were “authorizing an out-of-state gadfly to repeatedly bombard local governments with demands to produce public records” at the time OPRA was adopted.
“Despite authority to assess a reasonable special service charge for the time and effort to respond, no amount of reimbursement makes up for the energies to their primary mission of serving the local constituents,” Johnson said in his decision.”The exhibits accompanying the pleadings reveal a time-consuming exchange between city officials and a practiced disruptive gadfly bent on intimidating public officials.”
The judge described an “objective reading of communications (between Scheeler and Cummiskey) might characterize them as rude, bellicose and obnoxious. The emails between Cummiskey and the plaintiff (Scheeler) were replete with one belligerent demand after another,” Nelson said in his decision. “The plaintiff’s truculence is palpable; his penchant for rebuke is totally inappropriate. Further discussion of his bullying comments would lend them a dignity they do not deserve.”
Previous Decision Considered
At oral arguments Jan. 12, Scheeler’s attorney had presented an unpublished “tentative” decision by Burlington County Superior Court Assignment Judge Ronald Bookbinder dated Oct. 8, 2015, where Bookbinder had interpreted OPRA to grant a right of access to public records to non-citizens. Johnson gave both attorneys a chance to review the decision and provide briefs before issuing his decision.
Cape May City Solicitor Anthony Monzo from Monzo Catanese Hillegass, PC, of Court House, claimed that government records were accessible by “citizens” of New Jersey who have “established an interest in the subject matter they are seeking.” 
He rejected Bookbinder’s decision as an “inaccurate interpretation of OPRA.” 
The plaintiff, on the other hand, argued that Bookbinder “got it right,” arguing that the court was “obligated to take a liberal approach” in construing OPRA and granting the request for an out-of-state resident. Griffin also maintained that the defendants failed to “state a specific lawful basis for redacting the legal bills.”
The court did not address either party’s position on the redactions to the legal bills.
Making Sense of the Law
Johnson’s decision outlined the history of OPRA’s adoption by the Legislature as an outgrowth of the state’s Right to Know Law. “When interpreting a statute, the court’s primary responsibility is to determine the legislative intent,” Johnson said. “The starting point is to examine the plain language of the statute and ascribe to the words their ordinary meaning.
“Our task is to have the law make sense,” he noted.
In 1963, Johnson said the Legislature enacted the Right to Know Law declaring public records were accessible for examination by citizens of the state.
OPRA, he said, was enacted to expand the scope of accessible government records, not the scope of who has access. “If the Legislature intended for anyone to have access, they would have said so.”
Under OPRA, Johnson said statutory public records have been defined and the proof is placed squarely on government to present a rationale explaining why a citizen’s right to access must be denied.
“The burden shifting and counsel fees put teeth into OPRA,” Johnson said. “Teeth can be sharp. Finding the right of access, especially here where the plaintiff is a non-citizen, must be granted with due caution and judicious restraint.
Citizen vs. Non-Citizen Rights
“The non-citizen plaintiff is sitting in the comfort of his home, hundreds of miles away in North Carolina,” Johnson pointed out. “He types a note on his keyboard and with a click of his mouse, submits an email making demands on the city clerk. Is it reasonable for the municipality to have the burden of proof and run the risk of paying legal fees in each and every instance he decides he’s interested in a particular issue involving a local government in New Jersey?”
Johnson cited a similar 2013 OPRA case in Virginia whereby two state agencies there denied access to documents on the basis of non-state residency. “The court said the state doesn’t need to apply laws and services equally to non-citizens….only those considered fundamental.”
“Should a non-citizen reap the benefits of a citizen who pays taxes, or who is not affected by the political process?” Johnson asked. “Does the city have to continually explain its position and be required to satisfy multiple inquiries of a non-resident gadfly?
“Is this what the Legislature had in mind?,” he continued. “No. A reading of the New Jersey Senate bills preceding adoption of OPRA show that they intended to make OPRA applicable to citizens of this state.”
Johnson added that Scheeler can’t call New Jersey government “his” government.
Statewide Impact
According to a release issued by the city Feb. 22, Mayor Edward J. Mahaney, Jr., stated, “This represents a judicial landmark decision which will have, at a minimum, statewide impact on the interpretation, implementation, and enforcement of New Jersey’s Open Public Records Act (OPRA). In his straightforward, 12-page decision, Judge Johnson addresses and rules on significant controversial issues pertaining to the state’s OPRA law which will affect all public agencies (including the 565 municipalities). The City of Cape May has been bombarded by Mr. Scheeler’s proliferation of OPRA requests during at least the past two years, many of which were really being filed on behalf of local residents who have/had political agendas. As a result, city government was subjected to widespread negative and inaccurate publicity to the detriment of city operations/initiatives, governing body members, and dedicated city employees.”
Griffin said she believes the judge’s decision will have widespread negative consequences.
“It is clear that public agencies will start denying access to anyone they deem not to be a ‘citizen,'” she said.  “The New York Times, Philadelphia Inquirer, Wall Street Journal, national news stations, etc., could all be barred from filing OPRA requests under the judge’s ruling.”
According to Griffin, the judge’s decision also fails to recognize that there are many reasons someone who resides in another state would want or need New Jersey’s government records. 
“Maybe they are moving from Manhattan to Montclair, and they want to research crime statistics, review school board meeting minutes, etc.  Maybe they are a ‘citizen’ of New York, but own a vacation home down the shore and want to keep apprised of what is going on in New Jersey. Maybe they were traveling through New Jersey and need to obtain records relating to an accident that occurred on the turnpike. There are endless reasons why out-of-state residents want and need government records and OPRA has always been interpreted to permit them to do so,” she noted.
Cottage Industry
“Scheeler has turned OPRA into a cottage industry and has made a career out of badgering records custodians statewide while sitting at his home in North Carolina, and then suing and recovering legal fees every time there was a misstep made by the custodian,” Monzo stated in the city’s release. 
“What he has done in Cape May and statewide is outrageous, and I am grateful that the mayor and council allowed me to take up this cause for the benefit of the taxpayers and residents of Cape May, which has now benefitted all of the taxpayers and citizens of the State of New Jersey.”
Monzo added, “This is a total and complete victory for the City of Cape May, the State of New Jersey, every branch of local government in the state of New Jersey and its citizenry as a whole.  It will stop Scheeler and his 100+ OPRA requests per year dead in his tracks and restore a sense of civility to a law that was intended to aid New Jersey citizens rather than to cost them hundreds of thousands of dollars in legal fees because of the fee shifting requirements under OPRA.”
Surprised
“I was surprised by the decision because I do not think it comports to the legislative history or the Legislature’s instruction that OPRA is to be construed in favor of access,” Scheeler’s attorney said. “We produced published case law, including a Supreme Court case, which makes it clear that when the Legislature changes the words in a statute from ‘any citizen’ to ‘any person’ that they intend to broaden the scope of the language, which was the case here.”
Griffin also said that she felt the judge was “too harsh on Mr. Scheeler, labeling him a ‘gadfly.’ The truth is, as documented in the pleadings, Mr. Scheeler is a former credentialed member of the press and serves as an important resource for New Jersey citizens by filing requests for those who do not want to face retaliation, by posting government records on his OPRA blog, and by filing requests and providing the ‘scoop’ to journalists. He does have an interest in New Jersey – he lived here his entire life until he had to move away approximately a year ago for logistical reasons.”
Not Giving Up
Scheeler said he was “very disappointed with the ruling. I think part of the problem with this type of litigation is that it is not held in trial form. The judge didn’t seem to understand all of the facts.
“While I may have put in over 100 OPRA requests in 2015, very few were for myself,” he added, noting he had filed the requests on behalf of others.
“While this is obviously a setback, I will not give up because that is what they want,” Scheeler added. “If they succeed, the people will have lost all control of their government which will just continue the cycle of corruption. As of right now, any tips or concerns regarding Cape May will be sent to New Jersey activists who have volunteered to continue this fight. In the end, the city is not going to accomplish hiding the mismanagement of taxpayer funds.”
According to Griffin, “OPRA provides attorneys fees only for requestors who prevail, to level the playing field. It does not provide attorneys’ fees to a public agency when they lose.”
To contact Karen Knight, email kknight@cmcherald.com.