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A Mercer County, N.J., judge has struck down a common-law defense that allowed government to keep documents secret if it demonstrated a compelling interest, saying the defense will not stand under the state’s new Open Public Records Act. As a result, the New Jerseyans for a Death Penalty Moratorium will have access to Department of Corrections documents detailing how New Jersey’s executions would be carried out. The new statute “upsets the balance” between a previous statute limiting access and the common law promoting it, Judge Linda Feinberg wrote on Oct. 28 in NJDPM v. NJDOC, MER-L-1740-02. She said the balancing test is now “limited to the right of an applicant to seek the release of a document otherwise considered exempt under the OPRA,” N.J.S.A. 47:1A-1 to 13. Under the old Right To Know Law, only records required to be kept by law counted as government records that could be made public. Under OPRA, a record can be almost any kind of information generated by the government. The old law afforded the right to see very few government documents, but the common-law balancing test allowed restricted documents to be released if the requester could show there was an interest in making the information public. That interest was weighed against government’s need to keep the documents secret. While OPRA retains a remedy by which parties can seek release of records beyond those provided by statute, the common-law test “does not provide a mechanism for the government to withhold documents defined as a ‘government record’ where there is no recognized exemption.” Feinberg’s ruling describes in some detail the intellectual angst she went through to reach her decision. “This court has struggled to construct a way to evaluate the release of documents given the new definition,” she wrote. Initially, she considered a two-pronged balancing test, one that allowed plaintiffs to argue for the release of documents that remain exempt under the new act but also allowed the government to argue for nondisclosure for documents the new act says should be released. Feinberg rejected that idea. “While the court drafted this two-part test as part of an analysis to consider alternatives, this court is concerned that if it were adopted the public and the media would perceive this approach as offending the very purpose of OPRA by permitting government the opportunity to avoid disclosure. Most significantly, such an approach would undoubtedly distort the purpose of OPRA,” Feinberg wrote. Says Kevin Walsh, chairman of the legal committee of the New Jerseyans for a Death Penalty Moratorium, “The Department of Corrections was essentially arguing that OPRA became the common law. The judge found that it didn’t, there had to be specific exemptions [before the common law applied] … . She interpreted it as broadly as it possibly could be.” Walsh also notes that Feinberg’s ruling assists plaintiffs by requiring defendants in OPRA cases to make a “Vaughn Index” of documents they want to keep secret, in keeping with Vaughn v. Rosen, 484 F.2d 820 (1973), and provide a specific explanation of why nondisclosure is desirable for each indexed item. “They at least have to acknowledge that they created volumes of documents, and you know what you’re fighting for,” Walsh says. Until the ruling, the DOC had simply claimed a blanket privilege over broad categories of information. Deputy Attorney General Patrick DeAlmeida says, “It’s a very thorough analysis of the new statute but we may be taking issue with parts of the decision,” including removal of the government’s interest in retaining nonexempt information. He says he also believes some prison security issues would compel secrecy for some of the documents Feinberg ruled should be released. In the underlying suit, the plaintiffs challenged the constitutionality of proposed rules published by the DOC for carrying out executions. When the government denied access to documents, the plaintiffs appealed but also made a separate OPRA claim for the documents. With no trial record below as such, the appeals panel remanded the case to Feinberg’s court for fact-finding. Her ruling will factor into the Appellate Division’s ultimate decision. The execution rules in question include a 72-hour media access ban on the condemned prisoner, which the plaintiff alleges is a clear breach of the First Amendment. The DOC disputes that. “We think the regulations are valid,” says DeAlmeida, declining to elaborate since the underlying case is not yet briefed. Another claim by the plaintiff is that the DOC’s lethal injection procedure is cruel and unusual because it is based on amateur advice given by Fred Leuchter. He is a seller of execution devices to U.S. state prison systems who became infamous when he authored a report that claimed it was logistically impossible for the Nazis to have executed the 6 million Jews who died in the Holocaust. “Fred Leuchter told New Jersey how to execute people, and he taught himself to do it by executing a pig. There’s no indication that New Jersey has used anything other than that information in putting together their lethal injection procedure. There’s no indication anywhere that the Department of Corrections knows what it’s doing, and they’ve never lethally injected anyone to start with,” says Walsh. The state has yet to perform an execution even though the death penalty was legalized in New Jersey in 1982. DeAlmeida declines to comment on that issue, beyond saying, “I haven’t seen Mr. Leuchter’s name in anything as far as the documents go.”

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