Master clerk explains intricacies of recent OPRA requests

IRVINGTON, NJ — 2017 has been a busy year for Irvington municipal clerk Harold Wiener, when it comes to answering the flood of Open Public Records Act requests that have inundated his office.

“We had 856 OPRA requests last year and are on a pace to increase that amount by a large amount this year,” said Wiener on Friday, June 23. “My opinion is that, if the records requested can be produced and is a matter of public record, then the requester is entitled to the records in a timely manner. The main problem I have with OPRA is that it is being used for profit-making commercial purposes and in lieu of discovery. We get an OPRA request now from every property that changes ownership.”

Wiener is also certified as a master clerk by the state of New Jersey, making him a valuable resource for residents. Such was the case with a recent New Jersey Superior Court Appellate Division ruling in Orange resident Katalin Gordon’s favor.

Gordon’s appeal was based on two previous state Government Records Council rulings against her 2013 OPRA request for information related to former Orange city clerk Dwight Mitchell’s employment status while he was out on an extended medical leave due to a car accident. Gordon originally filed two separate, but related, OPRA requests with the Orange City Clerk’s Office that were never answered and when she reported this failure, the Government Records Council ruled against her on two separate occasions.

But Gordon decided to take the Government Records Council to court and appealed both its decisions of her OPRA requests with the Superior Court of New Jersey Appellate Division, according to Dockets A-4869-13T2 and A-1272-14T1.

On Friday, June 23, the Appellate Division issued its final rulings in Gordon’s case and it was split — it upheld the prior Government Records Council ruling with regard to one OPRA request, but overturned the ruling the other. Wiener was called on to help make sense of the appeals court’s ruling for Record-Transcript readers.

“I agree that, if the city was not in litigation, then there was no exception to providing the documents,” said Wiener on Friday, June 23. “I also agree with the original decision of the GRC that there was no willful and knowing violation of OPRA on the part of the city. It appears that part of this decision disagreed with that.”

Wiener said state law is very clear, when it comes to OPRA requests and what information can and cannot be released to the public.

“There are some things that the court may have missed or perhaps were not relevant to the matter,” said Wiener with regard to Gordon’s case in Orange, where city and Clerk’ Office officials denied her original request for information because they said it was relevant to an ongoing lawsuit, but it was later revealed that there was no legal action under way in Orange when Gordon made her OPRA request.

Regardless of the particulars of Gordon’s case, Wiener said the original intent of OPRA as an expression of “New Jersey’s public policy favoring transparency in government and disclosure of government documents and endeavors to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process” is here to stay.

“As you can see, OPRA interpretations have morphed in the courts throughout the years,” said Wiener. “Many previous decisions have been reversed by the same court using a different set of facts.”

The Appellate Division judges who decided Gordon’s case explained their ruling.

“OPRA expresses New Jersey’s public policy favoring transparency in government and disclosure of government documents and endeavors to ‘maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process,’” said Judges Rothstadt and Sumners in their on Friday, June 23.

“OPRA broadly defines ‘government record’ to include any paper, information stored or maintained electronically or any copy thereof, that has been made, maintained or kept on file in the course of official business by any commission, agency or authority of the state or any political subdivision thereof.”

Rothstadt and Sumners went on to list the remedies available to those making OPRA requests, who are having trouble getting them answered.

“It is clear that record custodians must grant or deny access to such records ‘as soon as possible, but not later than seven business days after receiving the request’” said Rothstadt and Sumners in their ruling. “A custodian or any other public official or employee ‘who knowingly or willfully violates OPRA and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty.’ If there is a knowing and willful OPRA violation by a public body or custodian of records, ‘and is found to have unreasonably denied access under the totality of the circumstances, the GRC may impose the penalties provided for in OPRA.’”

Gordon said fining municipal clerks who don’t comply with the letter of the law when it comes to OPRA requests is the right way to go.

“The courts in general have not enforced much OPRA’s civil penalty clause, and the GRC in particular has blatantly ignored testing the need for civil penalty. I think and hope, that this this decision will change that,” Gordon said. “I have about eight or nine GRC complaints — I prevailed in all — against the city. They have so far amounted to nothing, because neither the administration nor the council has cared. There has never been any repercussion. My hope is, that once there is precedence, that the very person who withholds the information can be fined — these are civil fines, the organization, the city may not pay them — they will start thinking twice to risk (their) own money for the city’s sake. The fines are: $500, first offense; $1,000, second one; $2,500, third one.”

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