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When New Jersey Gov. James McGreevey last month announced 583 exemptions to the newly effective Open Public Records Act, he stressed they were necessary to guard the state from misuse of information by terrorists. However, internal e-mails, position papers and other memos obtained from the governor’s office indicate that the initial concerns were the cost of implementation, the threat of lawsuits and the likelihood of having to pay attorney fees if the state lost them. The documents show that only later was the state’s interest in counterterrorism vaunted as a rationale for the myriad exemptions, which caused vocal opposition by the news media and by open-government advocates. All but 75 have since been retracted. The governor’s office denies that the memos mentioning attorney fees are significant and says that the meaningful work on OPRA began several months after the memos were written. Indeed, the memos show that in April, when the Office of Counter-Terrorism requested exempting as much material as possible for security reasons, worries over attorney fees fell by the wayside. As Senior Associate Counsel Karen Fiorelli put it in one of many e-mails midway through the process, “OPRA and security ‘Perfect Together?’” “I wouldn’t read [too much] into that,” Jo Astrid Glading, McGreevey’s chief of policy and communications, says of the memos. “I don’t think we once talked about attorneys fees and the issue of litigation.” Nevertheless, the internal documents — released under OPRA on a request from the New Jersey Foundation for Open Government — show that attorney fees were among the first aspects reviewed when the nascent administration started analyzing OPRA in January. The act, signed by Gov. Donald DiFrancesco right before McGreevey took office in January, was intended to open almost all of the state’s procedures and records to public inspection. Its effective date was delayed six months until July 8 to allow the administration to write regulations to protect privacy and certain types of sensitive information that would cause more harm than good if released. The exemptions, in Executive Order 21, published in the New Jersey Register on July 8, were numerous and broad. At one point, papers recording such mundane issues as the state’s acquisition of farmland were to be withheld. That immediately drew protests from open-government activists, who noted that some agencies, including a handful of police departments that ceased reporting arrests, had stopped giving out basic information to the public. At the height of the controversy, Attorney General David Samson had to put out a memo to all county and municipal police departments demanding that officers continue to release information to the public. “Nothing in that Order was intended to restrict the immediate release of information,” Samson wrote. The protests ended after a week when McGreevey agreed to pare the exemptions to just 75 items. But back in January, none of that was on the mind of the new administration, which was most concerned about an impending, frightful budget deficit. A Jan. 31 memo from Deputy Chief Counsel Mark Fleming to Chief Counsel Paul Levinsohn, laying out the act’s “most significant points,” puts “MONEY” at the top of the list. Fleming’s major concern was that OPRA required civil penalties for the government if information requests were not dealt with quickly enough, “$1,000 for the first offense and attorneys fees,” he wrote. “OPRA eliminates the $500 cap on a successful attorney’s fees and allows recovery of a ‘reasonable’ fee; this will likely encourage lawyers to bring these cases and we will likely see an increase in the number of cases.” Fleming also drew out a long list of before-and-after items indicating the changes from the old law to the new under OPRA. Terrorism and state security are not mentioned. According to the memos, however, it was not until almost three months later that McGreevey’s advisers started to link fears of terrorism to exemptions to OPRA. On April 22, Fiorelli wrote to Fleming to say that Deborah Stone, deputy director of the OCT, was planning some input to the executive order. The deadline for exemptions “really kind of came on the radar screen late in March [or in] April,” says Glading. “Close to three months to the effective date we began to define the key issues that needed attention and focus. Obviously, one of the most important issues was security.” At this point, the governor’s counsel’s office became somewhat confused as to what the OCT was doing. Fleming’s colleagues started to ask him about a set of documents on OPRA that Stone was supposed to have delivered to him, but Fleming didn’t know what anyone was talking about. Curtis Fisher, McGreevey’s deputy policy director for regulatory issues, e-mailed Fleming to ask what was going on. “I talked to Debbie Stone who mentioned that you were the point person on their effort to draft up a EO [executive order] on ‘security’ exemptions that the Office of Counter Terrorism is proposing to exempt from OPRA. What is the process? The timeline? Debbie said that some document was supposed to get to you today. Could you share that with Beth [Sztuk, deputy chief of the office of management and operations] and I?” Fleming forwarded the e-mail to Fiorelli. “Karen: how did I get in the middle of this? Do you know what document Debbie is referencing?” he wrote. Fiorelli’s response: “No idea what was to get to us today. Sorry you got in the middle of this.” If Fleming and his staffers still did not know exactly what the OCT was working on, they were well aware that it was going to create a storm. Fisher tried to flag some potential problems the OCT might create. He wrote a list, beginning, “To throw out a few of the most controversial issues they are proposing.” The contents of the list are blacked out. It ends with a repetition of his request from the previous month, “What is the process?” The e-mail was circulated to several other staffers, and Fiorelli ultimately responded, “Apparently, OCT is developing a draft gap EO … I will share that draft when I receive it.” As April turned to May, the OCT’s proposals for the exemptions still did not materialize. On May 14, Fisher copied Fleming on an e-mail query about the OCT’s proposals. “Is the Office of Counter-Terrorism going to write up anything more than the 3 page memo?” The confusion and lack of knowledge is significant because that same day Fisher filed an “update” memo to the governor on the implementation of OPRA, the first memo among these papers addressed directly to McGreevey since he took office. Fleming’s briefing indicates that the governor needed an introduction to OPRA — it starts with a description of what the act does. “Due to the complexity of both the legislation and its implementation, a briefing on this matter might be good idea,” Fleming told McGreevey, “OPRA’s effective date is rapidly approaching.” The remainder of the briefing remains censored, but a “Summary of Recommendations” for the governor was followed by a list of “Less Controversial Issues,” which have also been blacked out. A week later, Fisher again attempted to find out what the OCT wanted to propose, if anything. “What is the status of DLPS [the Division of Law and Public Safety] setting up a high-level ‘task force’ on the implementation of OPRA[?]” he asked Fleming and Sztuk. According to Glading, the task force was the Domestic Security Preparedness Task Force, which works under the attorney general. The papers do not record whether Fisher received a reply, but they do indicate that Fleming had at least started work on writing an executive order for McGreevey to sign. Fisher tried again the next day, May 22. “Is there a draft? What will the process be for drafting and finalizing it?” he e-mailed to Fleming. Fleming, however, had problems of his own. “I am hampered today by the absence of my secretary … The EO will be done early next week … I apologize for holding this up,” he told Curtis. On June 24, the counsel’s office finally was able to propose a draft executive order for McGreevey, which was tweaked into a second version on June 26. If Fleming and Levinsohn were ready to proceed with the governor’s approval, the attorney general’s office — which oversees the OCT — was not. On July 2, less than a week before OPRA and the executive order were to go into effect, Samson was still tinkering with the wording. “The Attorney General has made some last minute changes,” Fleming informed his co-workers. The exemptions were published on time, but even then there was a glitch. “About 1/2 of the NJ Registers mailed from the Hamilton Post Office were not delivered until yesterday, 10 days later than the others,” Fleming told his staff on July 12. It was decided to extend the comment period to make up the loss. The exemptions were universally panned. “Some are just plain silly, such as not disclosing lists of state historic sites. Much of that information is already available on the Internet and even on signs along New Jersey roadways,” said The Record of Hackensack on July 11. Last Monday, in explaining how he came to reverse almost all of Executive Order 21 after a “line by line review” of the work by Fleming, Curtis and Levinsohn, McGreevey said, “We wanted to develop a thoughtful balance between open and accessible government and the security of the state.” The implementation and then the all-but repeal are “part of the rule-making process,” McGreevey added. Calls to Fleming, Fiorelli, Fisher, Levinsohn and Stone were not returned. Samson and Sztuk decline to comment. Michael Booth of the Journal ‘s Trenton, N.J., bureau also contributed to this story.

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