Friend or Foe? Court Examines State’s Role in Public-Record Requests

Mark Lagerkvist | October 14, 2015 | Politics
Why is it that OPRA requests are closer to a shell game than to a transparent transaction?

Credit: Governor's Office/Tim Larsen
Gov. Chris Christie
Gov. Chris Christie and New Jersey Watchdog will battle in appeals court Thursday in a case that could change how the state cooperates with citizens who ask for public records.

Under Christie, the state Open Public Records Act often resembles a shell game. The governor’s office can reject requests without really explaining why. Requestors must choose whether to walk away or bet on an appeals process that’s often lengthy and potentially costly.

The conflict centers on a 21-month-old quest for records of who paid for out-of-state trips by Christie. In its request, New Jersey Watchdog cited a state regulation that requires certain documents to be kept when third parties, such as political groups and special interests, fund the trips of government officials. (Disclosure: Investigative reporter Mark Lagerkvist is the plaintiff in Lagerkvist v. Office of the Governor, Superior Court Appellate Division docket number A-000250-14-T03.)

The governor’s staff rejected the request, then stonewalled the requestor.

“Please be advised that the nature of your request is unclear, and your request is therefore invalid under OPRA,” responded Javier Diaz, an aide to Christie.

New Jersey Watchdog noted in its response to Diaz that it had ”requested specific documents with reasonable clarity,” and asked that “any technicality that causes it to be unclear” be identified.

Diaz failed to answer. Seeking clarity, New Jersey Watchdog sued the governor’s office.

In Mercer County Superior Court, the shell game continued as the administration offered a new reason to justify its denial.

Assistant Attorney General Lewis Scheindlin claimed Christie and his staff are exempt from all state travel regulations, including the rule requiring third-party records to be kept. As evidence, the state produced Treasury memos sent to two past governors, Brendan Byrne in 1979 and Christine Todd Whitman in 2000.

Scheindlin avoided the core question of whether records existed, regulation or not — and Judge Mary C. Jacobson did not push for an answer during the hearing in July 2014. Instead, she focused on what she decided was a fatal flaw in the OPRA request.

In addition to the records specified in state rules, the request also sought “any event programs, schedules or other records disclosing the particulars of the events … it also includes any emails, internal or external, regarding the arrangements and events.”

Jacobson deemed that part of the request “inappropriate” because it was “overbroad” and not specific enough. On that basis, the judge dismissed the entire case.

In her ruling, Jacobson stated that custodians of government records have no legal obligation to cooperate or communicate with citizens about denied OPRA requests.

“I don’t see any requirement if the request itself is inappropriate to begin with, that they try to work with the requestor,” said the judge.

In its appeal, New Jersey Watchdog is asking a higher court to hold government officials to a higher standard.

“The government is not allowed to be sneaky,” argued attorney Donald M. Doherty Jr. in his brief. “It must be above board in all of its dealings. In dealing with the public, the government must ‘turn square corners.’”

Oral arguments are scheduled for Thursday, starting 10 a.m. at the Ocean County Courthouse in Toms River. The three appellate judges assigned to hear the case are Carmen H. Alvarez, Michael E. Ostrer, and Michael J. Haas.

A version of this story has been posted to the New Jersey Watchdog website.