ATLANTIC CITY – Was the Open Public Records Act (OPRA) intended for any “person” to request public records, or just for New Jersey “citizens?”
That’s essentially what Superior Court Judge Nelson C. Johnson will be deciding as he reviews final arguments as part of an OPRA lawsuit filed by North Carolina resident Harry Scheeler against the City of Cape May and Louise Cummiskey, in her capacity as city records custodian.
The city filed a motion to dismiss the lawsuit claiming Scheeler had no standing to request the public records nor file the lawsuit because he is not a citizen of New Jersey.
Scheeler has said that he was acting on behalf of a number of Cape May residents in assisting in obtaining public records information, mostly related to the police department compensatory time issue. He 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.
Attorneys for both parties appeared before Johnson Jan. 12. The city and Cummiskey are represented by City Solicitor Anthony Monzo and his assistant Louis DeLollis from Monzo Catanese Hillegass, PC, of Court House. Scheeler is represented by Attorney C.J. Griffin, of Pashman Stein of Hackensack.
While both attorneys presented their clients’ positions, citing a variety of legal rulings and decisions, it was an Oct. 2, 2015, “tentative” decision made “final” via an order Dec. 24, 2015, by Burlington County Superior Court Assignment Judge Ronald Bookbinder which Griffin cited that caused Johnson to postpone his decision.
In that case, Griffin said Scheeler had challenged the Atlantic County Joint Insurance Fund’s (JIF) refusal to produce attorney invoices. “They withheld all invoices in their entirety,” he explained. “When we sued, they challenged his residency. They lost on both issues.”
According to Griffin, Bookbinder found “Mr. Scheeler had standing to file OPRA requests and to sue for unlawful denials of access,” Griffin said. “He found that OPRA was for ‘any person,’ not just citizens of New Jersey.
“He held that OPRA’s requirement that ‘any limitation on the right of access be construed in favor of access’ and New Jersey’s ‘liberal approach’ to standing issues warrants finding that non-residents have standing to make OPRA requests,” Griffin continued, “and that New Jersey citizens benefit the same from an out-of-state request that promotes government transparency as they do from a request that was made by an in-state resident.”
Griffin represented Scheeler in the case against JIF.
Because neither Johnson nor Monzo were aware of that recent court decision, Johnson wanted time for Monzo and him to read the 22-page decision by Bookbinder.
He gave both attorneys until Jan. 22 to provide “no more than a five-page brief” stating their case in light of Bookbinder’s decision and promised he would issue his opinion by Feb. 5, if not before.
Griffin also argued that the state Legislature had changed some of the OPRA wording from “citizen” to “person” and their intent was to provide the public with access to public records. Monzo argued that “citizen” has been clearly defined to be a “resident” of the state.
“While every citizen is a person, not every person is a citizen of New Jersey,” Johnson said, as he listened to attorneys for both parties.
“Can someone sitting at a terminal in London find something of interest on the Internet and ask that town to provide access to their records,” he asked Griffin. “The city is telling me that a person who is not from New Jersey is making these requests and they (the requests) are a burden to the city. Where do you draw the line?”
“I don’t know where you draw the line,” Griffin replied, “but it doesn’t stop at New Jersey because of the language of the law. The goal is the maximum knowledge of public affairs.”
If Johnson decides that Scheeler did not have the right to request the records and file a lawsuit because he is not a citizen of New Jersey, his attorney indicated he would seek other OPRA activists who live in New Jersey for their assistance. Once the residency issue is resolved, the lawsuit seeking a variety of Cape May records can be addressed accordingly.
In the meantime, Scheeler has posted on social media and his website that he is no longer helping people with OPRA requests and instead, is “exposing the unethical and illegal conduct of the New Jersey Department of Children and Families, formerly known as DYFS.
“As far as helping people (regarding OPRA requests), I am done,” he said. “In fact, Cape May people came to me last week for more help and they were turned away. I have way too many people contacting me and I never have time to work on my own projects.
“DYFS is a major problem because they have a former Government Records Council (GRC) case manager who is now their records custodian who thinks he can get away with denying everything because he wants to spare the state embarrassment,” Scheeler added.
Scheeler asks anyone who was denied access to public records contact Griffin directly, instead of working through him.
The hearing before Johnson was delayed 25 minutes after Monzo informed the court that he expected the deputy executive director of the GRC to attend, and that she was running late.
After she appeared and was introduced to Johnson, Monzo indicated that Dawn SanFilippo, deputy executive director, GRC, was available to address the court if necessary. Johnson asked if she was a “barrister” and Monzo replied that she was. Only attorneys addressed the court during the hearing.
According to their website, the GRC is “committed to making OPRA work for the citizens of New Jersey. Since the law’s inception, the GRC has worked hard to make government records more easily accessible to the public. The GRC is committed to being the facilitator of open government in New Jersey.”
Created under OPRA, the GRC:
- Responds to inquiries and complaints about the law from the public and public agency records custodians
- Issues public information about the law and services provided by the Council
- Maintains a toll-free helpline (866-850-0511) and website, http://www.state.nj.us/grc/index.shtml to assist the public and records custodians
- Issues advisory opinions on the accessibility of government records
- Delivers training on the law
- Provides mediation of disputes about access to government records
- Resolves disputes regarding access to government records
After Griffin and Monzo addressed the court, Johnson asked SanFilippo if she wanted to make any comments.
“The GRC is not taking a position in this case,” she said. “I am here only to observe.”
After the hearing, Scheeler took issue with SanFilippo appearing. In an email sent after the hearing, Scheeler told SanFilippo he is “well aware of the conspiracy underway to take the position that non-citizens are barred from making OPRA requests specifically to get rid of me. Your presence today during Scheeler vs Cape May was highly unethical.”
Scheeler, formerly of Woodbine, claims he intends to move back to New Jersey. He also indicated he was filing an OPRA request for all emails between SanFilippo, the GRC, the Cape May city clerk and Monzo related to “OPRA, Harry Scheeler” during the period of Aug. 1, 2015 to Jan. 12, 2016.
Efforts to reach SanFilippo were unsuccessful.
To contact Karen Knight, email kknight@cmcherald.com.
