NJ News & Views

A decade after New Jersey journalists lobbied for legislative change giving them greater access to government documents, that goal remains out of reach.

In 2002, New Jersey enacted the Open Public Records Act (OPRA), which amended the state's 1963 Right to Know law. Under OPRA, the Government Records Council (GRC), which is part of the state Department of Community Affairs (DCA), hears denial of access complaints.

According to a May 24 ruling, the GRC does not distinguish between members of the media and members of the general public that file denial of access complaints, even though state officials take an oath of office to support the Constitutions of the United States and New Jersey - which both protect freedom of the press.

The May 24 ruling stems from a 2007 denial of access complaint filed by an investigative reporter for NJ News & Views against the records custodian for the Jackson School District.

Four years ago, the Jackson Board of Education reported on an addendum to the June 26, 2007 meeting agenda that the district received two bids for installation of fencing at Liberty High School and had awarded the contract to the lowest bidder.

Board members misinformed the public.

They also misinformed a member of the media that reports to the public.

On June 27, 2007, a reporter for NJ News & Views requested to inspect the bid package and fencing contract under OPRA.

District personnel told the reporter they did not have the contract.

District personnel did not produce a bid package that included completed bid proposals submitted by both bidders either.

Instead, district personnel gave the reporter a bid package with blank forms.

While the reporter did not request a completed bid package, the reporter also did not request a blank bid package.

Under OPRA, officials can respond with a written denial of access letter if the requested document does not exist.

That is not what the board's designated records custodian or the board attorney provided to NJ News & Views.

The reporter asked district personnel to provide the contract for inspection as soon as it was available.

They did not.

Several weeks later, the reporter called district offices and asked again if the contract was available for inspection under OPRA as previously requested.

Under OPRA, all contracts, bills and invoices must be produced for inspection upon request. They are the exception to the 7-business day limit in responding to all other requested documents.

On July 30, 2007, over a month after the reporter filed an OPRA request, district personnel presented a signed contract for inspection that included the completed winning bid proposal and no other.

The contract was signed on July 26, 2007 by Jackson board President Marvin Krakower and Anthony Martinez, President of National Fence Systems, Inc., the winning bidder.

Krakower is a former member of the municipal governing body.

On August 3, 2007, the reporter filed a denial of access complaint with the Government Records Council (GRC).

Members of the GRC include the Commissioner of Community Affairs or the commissioner's designee; the Commissioner of Education or the commissioner's designee; and three members of the public appointed by the governor with the advice and consent of the state Senate.

Only two of the three governor's appointees are permitted to be from the same political party.

Two years after a reporter for NJ News & Views filed a complaint against the Jackson Board of Education and its designated records custodian, Business Administrator/Board Secretary Gregory J. Brennan, mediation failed to yield an agreement. State mediator Fran Snyder turned the reporter's complaint back over to the GRC for adjudication.

Michelle Richardson, who succeeded Brennan upon his retirement, responded to the reporter's denial of access complaint two years after it was filed against Brennan, who is now deceased.

She denied the complaint and asserted that the reporter had received the requested information under OPRA.

In response, the reporter provided as further evidence a copy of the board's 2007 meeting agenda, which included the names of two bidders, a photocopy of the dated contract signature page, and correspondence with Brennan which further clarified the OPRA request and asked that it be fulfilled correctly.

In an October 1, 2007 letter, sent by postal mail and copied to Jackson Board Attorney Marc Zitomer, Jackson Superintendent of Schools Thomas Gialanella and District Communications Specialist Allison Erwin, Brennan acknowledged receipt of the reporter's faxed letter of September 27, 2007.

"I sympathize with your frustration in not being provided with information exactly when you request it," Brennan wrote. "However, I fail to understand how you can expect some document to be produced that my office does not physically possess."

In an October 4, 2007 letter faxed to Brennan, the reporter reminded him that access had still not been provided to inspect all requested documentation.

"Instead of completed bid proposals, I received blank application forms for potential bidders to fill out," the reporter wrote. "As a reporter for an Internet news site, why would I want to inspect blank application forms instead of completed bid proposals?"

Despite further clarification of the OPRA request, Brennan still did not provide all fencing bid proposals listed on the board's June 26, 2007 meeting agenda or a denial of access letter to explain the absence of all requested documentation.

Neither did his successor, Michelle Richardson.

In its May 24, 2011 ruling, the GRC upheld Brennan's actions.

"Because the Custodian certified that within the statutorily mandated response time the Custodian disclosed to the Complainant a copy of the requested bid package for fencing around Jackson Liberty High School, and because the Complainant has failed to provide any credible evidence to contradict the Custodian's certification, the Custodian has not denied access to said records," GRC Chair Robin Berg Tabakin wrote.

The GRC also found that Brennan had no obligation to produce the requested contract as soon as it was available for inspection under OPRA.

"The Custodian had no duty to fulfill the Complainant's request for pending records that were not in existence at the time of the request," Tabakin also wrote.

GRC Executive Director Catherine Starghill informed the reporter in a separate letter received as an e-mail attachment that the council's final decision could be appealed to an Appellate Court and a stay issued based on several criteria:

"A request for a stay must include a detailed analysis of the issues, which must include the Requestor's position with regard to the following factors that the GRC will include in its decision-making process:

1. The clear likelihood of success on appeal on the merits of the claim;
2. The danger of irreparable harm if the stay is not granted;
3. The absence of substantial injury to other parties if the stay is granted; and
4. The public interest.

On May 29, the reporter sent Starghill an e-mail response.

The reporter thanked Starghill for the time and effort members of the GRC had taken to adjudicate the OPRA complaint. However, the reporter noted, the ruling did not include an important fact.

"Although I am an investigative reporter, I did not see any mention of my position as a journalist in the attached documents I received from the GRC on May 26," the reporter wrote Starghill.

The distinction is relevant.

Because government officials take an oath of office to support state and Federal Constitutions that protect freedom of the press, the GRC has an obligation to hold those officials accountable to a higher standard when the complainant is a journalist - which is what a reporter for NJ News & Views did by filing a denial of access complaint in 2007.

There are dire consequences for failure to hold public officials accountable to such a standard.

Information a reporter does not see is information the public does not see.

According to a September 8, 2009 comment posted on a Jackson Free Press blog by reporter Donna Ladd, freedom of the press shines a light on people and issues where it is most needed.

"Our main purpose as journalists is to comfort the afflicted and afflict the comfortable—and the comfortable are often elected officials and bureaucrats," Ladd wrote.