When he left office, former Gov. Chris Christie designated all of his and his staff’s emails and other electronic records “privileged” or “confidential,” requiring review by him or his attorney before public release, contrary to New Jersey’s Open Public Records Act, a nonprofit organization is charging in a lawsuit.
Christie’s January 12 letter to Joseph Klett, director of the New Jersey State Archives, withholding from the public, at least initially, all electronic correspondence and records of his office during his eight-year tenure marked the first time in at least the last two decades that a governor leaving office sought to prevent the public release of such a wide array of his records.
MapLight, a nonpartisan watchdog, that tracks the influence of money in politics, filed a suit in state Superior Court in Mercer County against Christie, the state, the governor’s office, and Klett after being denied electronic records related to the Kushner Cos. from Christie’s last year in office. Jared Kushner was CEO of the company until January 2017, serving as senior advisor to his father-in-law, Donald Trump, when he took office as president.
“These are public records and we expected to be granted them as public records,” said Daniel G. Newman, MapLight’s cofounder and president, explaining why the organization filed its suit. “I was shocked … That’s one of the frustration factors here, the complete opacity of the process.”
He said MapLight has not come across a similar incident of the removal of large numbers of government records from the public eye during its investigations of money and politics in other states.
Stymied OPRA request
The organization found out about Christie’s designation of all office emails as privileged after making an OPRA request. Three months ago, the organization sought emails exchanged between Christie, his chief of staff, chief counsel, and five other key staff members and employees of the Kushner Cos. between February 1, 2017 and January 15, 2018, Christie’s last full day in office. MapLight also sought emails from the same time period exchanged between the governor and his staff and the New Jersey Economic Development Authority relating to the Kushner Cos. and one of its properties, One Journal Square in Jersey City.
Last month, the organization received a response from Klett that included a letter from former state Attorney General Jeffrey Chiesa, who is serving as Christie’s lawyer, in which Chiesa wrote that his firm had identified some relevant documents but would not release them due to the “executive privilege” exemption in OPRA.
In its suit filed Wednesday, MapLight contends that withholding the electronic records is a violation of OPRA and said the classification of all governor’s office emails as confidential is “troubling” for two reasons.
“First, contrary to the public’s presumption of access to all public records enshrined in OPRA, the procedure designates all emails and electronic documents as ‘confidential’ without reviewing any of them,” the suit states. “Second, the sole discretion to grant or deny access to records is bestowed upon a private citizen (Christie) and his private law firm. The records are never reviewed by anyone employed by the State or who owes a fiduciary duty to the State.”
No comment from Chiesa
Chiesa did not return a request for comment and a spokesman for the state attorney general’s office said it does not comment on pending litigation.
In his letter to Klett, Christie wrote that he was relying on a memorandum written by then-First Assistant Attorney General Peter Slocum to Christie’s chief counsel James DiGiulio regarding the preservation of the governor’s office’s electronic records. In that memo, Slocum writes that so many of the governor’s emails are likely considered privileged that “it is proper and appropriate to treat all electronic records of the Office as ‘confidential’ or ‘privileged’ in accordance with the above-mentioned archiving practice followed by preceding administrations, and thus defer final assertions or waivers of privilege until there is a concrete request for specific records.” Such requests should then be submitted to Christie or his designee for review.
That memo discusses the directives prior governors had made regarding their office papers. Former Gov. Jon Corzine left no instructions for the handling of the papers of his administration, according to MapLight, while the letters of the prior four governors, dating back to Christie Whitman, did not seek any special treatment of electronic records. But it makes a distinction for Christie’s records, stating, “With respect to emails alone, the electronic records generated by approximately 150 Office employees over the course of eight years are numerically staggering. A great many of those records are also subject to any number of privileges or confidentiality obligations.”
‘Fox guarding the henhouse’
MapLight received conflicting information from the state regarding the records, with Klett saying the state Office of Information Technology had reviewed the emails and Chiesa’s letter stating his firm had.
“The current governor should take action to bring these records back into the custody of the state,” MapLight’s Newman said. That will prevent the situation of having “the fox guarding the henhouse.”
“You have an outgoing administration that is going much farther than any previous administration,” said Walter Luers, a well-known New Jersey public records lawyer who is representing MapLight. “No one with a fiduciary duty to uphold OPRA is reviewing this.”
The letters of former Govs. Richard Codey, James McGreevey, Donald DiFrancesco, and Christie Whitman all essentially gave the same guidance. They sought to seal for 25 years personal and character information about individuals and companies, judicial personnel appointment personnel files, requests for clemency, and all records marked privileged or confidential. They also indicated that documents related to police investigations and security and threats to the governor and his family be permanently sealed.
Christie pushes the envelope
Luers said these letters to the archivist are “really a courtesy” and have no force of law under OPRA. In the case of Christie’s electronic records, which include not just emails, but also links and attachments, he said it is even more troubling if the state is not at least holding the records and conducting the initial search because that would mean “the state is completely insulated from the process.”
John Weingart, associate director of the Eagleton Institute of Politics and director of its Center on the American Governor, said the process of archiving public officials’ records is still trying to catch up with the changes in technology and how public officials conduct business. (Weingart is a member of NJ Spotlight’s governing board.)
“My impression is that the rules and norms are still evolving on how to handle gubernatorial records in the age of the internet,” he said. “When everything was on paper, departing governors and their staff could prune their files to decide what to send to the state archives, what to recycle, and maybe what to take home for their memoirs. Now, the volume of material is so much larger that doing them in any careful way is daunting at best.”
He said that given the large volume of Christie’s electronic records, it “seems an understandable precaution to, in effect, save the determination of what should be made public until a request is made or a snow day or two provides the time to sort through it all.”
State, not Christie, must decide
But public records advocates feel differently.
“It’s unclear whether the emails that have been requested are exempt or not, but what is crystal clear is that it is the state alone who should be making that legal determination and not former Gov. Christie or his outside attorneys,” said C.J. Griffin, an attorney with Hackensack-based Pashman Stein Walder Hayden who handles OPRA cases (including NJ Spotlight’s OPRA requests). “We are going down a very dangerous road if we start allowing politicians to decide whether or not we should have access to government records.”
The genesis of the lawsuit and the directives governors give to the state regarding the release of their office records was MapLight’s request for documents that might show whether there was any direction given by Christie regarding a $33 million tax credit for a Kushner property in Jersey City.
There is no love lost between Christie and Jared Kushner. When he was the U.S. Attorney for New Jersey, Christie sent Kushner’s father Charles to prison on charges of witness tampering, campaign finance law violations, and tax evasion. That elevated Jared Kushner to head of the Kushner Cos. Jared Kushner reportedly influenced Trump to remove Christie as head of his transition team.
According to MapLight, Kushner’s real estate company benefited from Christie’s administration. In late 2017, Christie appointees to the EDA renewed a $33 million tax credit for One Journal Square, a planned mixed-use skyscraper next to the PATH Station in the heart of the state’s second-largest city.
It is also the latest controversy regarding the former governor and one-time presidential hopeful’s electronic records. NorthJersey.com recently reported that Christie, now a political analyst with ABC News and apparently again a practicing lawyer, is continuing to use his governor’s Twitter and Facebook accounts. State officials said they do not have access to these accounts and none of their tweets or posts have been archived, even though Christie used social media to promote his policies and make statements, because New Jersey has no policy regarding the preservation of social media material.
If Murphy and Christie choose to fight the suit, it could wind up before the state Supreme Court, as New Jersey’s current OPRA law is silent about the records of former governors. Mercer County Superior Court Judge Mary Jacobson has already sent a trial date for September 13.