Litigant: Aiding Others

CAPE MAY – A lawsuit seeking a variety of City of Cape May records has been filed in Superior Court by a North Carolina “open government activist” who says he is acting on behalf of a number of Cape May residents to assist in obtaining public records information.
Harry Scheeler has filed the suit against the city and Louise Cummisky, in her capacity as records custodian for the city. He is represented by Attorney C.J. Griffin of Pashman Stein of Hackensack. See related story.
In an interview with the Herald, Scheeler said he was approached by a number of Cape May residents and a non-resident who needed his assistance to obtain documents related to the issues plaguing the police department and the issue surrounding compensatory time.
“The city was not honoring those requests under OPRA, and in some cases, asked for $1,000 for the documents,” Scheeler said. “People contact me for help when they are denied documents, because I can help them re-word their request, or sometimes the municipality recognizes my name and will provide me with the requested documents.”
OPRA stands for Open Public Records Act, which states that all records are accessible unless they meet a permitted exception or exemption.
“In New Jersey, there are very strict, frivolous lawsuit rules, so the goal is to get the court order to have the documents released,” said Scheeler. “When you sue, however, the judge will hear the case. If I prevail in any way whatsoever, I’m entitled to legal fees. Once the judge issues an order to turn over these documents, the judge will also tell my attorney to submit her bill.
“My attorney charges $350 an hour,” he continued explaining, “so she will get the time spent on the case at $350 an hour, plus whatever her expenses are, plus the $275 filing fee. The city can, at any time, say ‘We give up’ and give me the documents. If they did that, they are only on the hook for a small fraction of fees. The longer this goes on, the more the fees rack up.”
When asked what he receives from these actions, Scheeler responded, “I get a court order out of it. And no I do not get a cut of the attorney’s fee. That would be illegal and the attorney would be disbarred. The motivation is without court intervention there is no way to force the city to turn over what they are hiding.”
Scheeler notified Cummiskey Sept. 8 that he was filing the lawsuit, after initially filing a complaint with the Government Records Council (GRC) July 27. He withdrew that complaint Aug. 11 to file the suit in Superior Court.
“There are two options to dealing with these requests for documents under OPRA,” Scheeler said. “One is through the GRC, which is an administrative law council. There is no filing fee, but it can take over a year for them to issue a decision. The other option is to file in Superior Court. The courts handle the suit in an expedited manner, usually within 90 days.”
Scheeler said cases like this can cost about $10,000 in fees, and this year he expects to recover over $100,000 in fees. He has filed over 60 cases since 2009 and said he lost his first case in August, but has appealed it.
He lived in Cape May County for 10 years, having been a television and radio reporter during that time, as well as providing freelance video news coverage for the Cape May County Herald.
“I filed my first records request as a New Jersey teen in the early 1990s,” Scheeler said, “because I was suspicious of conversations police officers were having on their new-and-novel cell phones.” The move led to an event that restricted their use.
“Over time, I got interested in the Freedom of Information laws and studied them more and more,” he said. “Now, 90 percent of the cases I get involved with are from other people who contact me for help. I have a reputation as a known activist who will help.”
Scheeler maintains a website, opracrusades.com, where he solicits contact from anyone who is in “need of assistance with getting government records released or has a tip regarding government waste and abuse.”
Local parties were contacted, but desired to remain anonymous and are not specifically referenced in this article.
Non-resident Ben Miller, of Nazareth, Pa., a self-proclaimed Cape May historian, contacted Scheeler to assist with various OPRA requests. Miller has been active on social media, providing updates and information to followers about matters in the city.
 “I never heard of Harry Scheeler before two city employees specifically mentioned him by name and asked me to share their stories, and the stories of other employees, with him,” Miller said. “After they told me about him, I looked him up on the Internet and spoke with friends who are residents. I asked them if they had similar experiences with the city not responding to OPRA requests and they did. That’s the point where I reached out to Harry and passed along the concerns that were shared with me.
“After we talked via email, I introduced him to some of the residents who were willing to trust him with their stories,” he added.
“I know New Jersey laws, so I help all over New Jersey,” said Scheeler.
Disabled due to complications from diabetes and MRSA, a type of staph infection that is contagious and can cause life-threatening infections, and is resistant to many antibiotics, Scheeler said he and his family moved to North Carolina where the cost of living is substantially less than New Jersey and Cape May County. “I have filed a couple cases in North Carolina, but they are on personal matters.”
Lawsuit Overview
The lawsuit against the City of Cape May and Cummisky alleges that various documents, mostly related to the police department compensatory time issue, were requested on five different occasions since July and were not provided. The suit alleges that “several residents of Cape May sought Scheeler’s assistance to investigate alleged unethical and inappropriate conduct of city officials. According to Scheeler, prompted by what he felt was lack of transparency of Cape May officials, as well as suspicions that Cape May officials knowingly supplied false information and records to residents to cover up unethical and inappropriate conduct, Scheeler submitted several OPRA requests to obtain records “pertaining to several government practices, mostly with regard to government spending on legal services.” See requests.
Scheeler’s Arguments
In his lawsuit, Scheeler argues that Cummiskey and the City of Cape May have violated OPRA by denying access to government records. He also claims that the law requires a specific basis for any redactions to legal bills, rather than generalized reasons as provided by the city. 
He also is asking that the city be ordered to prepare a Vaughn index, which is additional information to determine if the redacted information is privileged. That index of information can be used by Scheeler in presenting his case.
“Why would privileged material appear on a bill?” he asked.
Scheeler also contends that the city withheld records without stating a reason, citing at least two legal bills that were not included. He also argues that the James Fallon contract, a retired state trooper, is not protected by attorney-client privilege.
Next Steps
Scheeler said he has over 30 other lawsuits going on, some anonymously since New Jersey allows OPRA requests to be made that way. Regarding the suit against the city and Cummisky, he expects “the lawsuit will proceed very quickly.
“This is considered an expedited case under the law,” Scheeler said. “Next, the city will be required to file an answer in support of their opposition. This is the point most towns give up and settle with me. They give me the records and my attorney fees thus far. Where you see the really high bills are cities that have no shot at winning the case, but let it go to court just to buy more time.”
To contact Karen Knight, email kknight@cmcherald.com.