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By July 2002, Somerset, N.J., resident Cynthia Teeters had harbored suspicions for two years that an adoption agency in her town was not what it appeared to be. As an adoption activist, she knew the agency’s chief personally — and he was only 23 years old. So eight days after the state’s Open Public Records Act became effective on July 1, she started filing requests for the Division of Youth and Family Services’ files on “A Child’s Hope International” and its youthful president. The requests took eight months to fulfill, as DYFS first denied it had investigated ACHI, and then denied it had made a report on the agency. At the same time, it emerged in the Aug. 4, 2002, edition of The Star-Ledger of Newark that ACHI was run by a former pornographer who had changed his name and had once published photos advertised as “Young Teen Sex,” “Cute girls with braces crying in pain,” and material “so hardcore it should be illegal.” By February, DYFS relented and turned over its ACHI files. It said the agency was unlicensed, and that despite nine violations, DYFS had given it a temporary certificate to stay in business. That, Teeters says, is exactly the kind of government information parents ought to be able to get easily. Teeters, however, had to retain Montclair, N.J.,solo practitioner Richard Gutman, who is still litigating the matter before the Government Records Council, the panel that adjudicates public-records secrecy complaints. Teeters’ experience is by no means unusual, according to lawyers, requesters and the Government Records Council itself. The Government Records Council has considered at least 137 complaints about government secrecy since the act was passed. At least four cases alleging breaches of the act have been filed in Superior Court. And two state legislators have proposed bills that would curb the act’s reach. Although OPRA requires that government bodies turn over records to requesters within seven days, and charge only 75 cents a page, the system is rife with foot-dragging, bureaucratic browbeating, fee gouging and flat-out noncompliance, the reported experiences indicate. Some cases suggest that government agencies are using the act to withhold or delay information that was routinely released before the act’s passage. In the past eight months, the New Jersey Law Journal has made 12 requests for information to a variety of government agencies, ranging from high-profile state bodies such as the attorney general’s office to local ones like the Jersey City Redevelopment Authority. Most took weeks to satisfy, and one took six months. Two requests for the same material to two state agencies were denied outright, with both agencies claiming the material was at the other agency. STILL SOME WRINKLES For their part, government officials say that the vast majority of requests — which likely number in the thousands — are being responded to properly, and that problems tend to occur only with difficult or expensive requests. It’s a new system that still has some wrinkles, they say. “The municipalities are all trying very hard to comply,” says Deborah Kole, staff attorney for the League of Municipalities. “I haven’t run into people who are purposely dragging their feet. I think it’s a new law and there’s a lot of confusion, but it’s getting better.” Part of their compliance, however, includes an ad hoc effort by municipalities across the state to amend OPRA with local ordinances that often make the process slower and more expensive. For example: � Irvington Township’s Code Chapter 98-52 charges fees of $5 for certain maps, $25 for videotapes and $600 for a full set of tax maps. � West Caldwell’s General Ordinance 2-31 et seq. requires requests be made by U.S. mail or hand delivery — not by fax, e-mail or telephone. It also sets new prices for police reports, starting at $10. � Old Bridge’s Ordinance No. 02-03 charges “direct costs” as under the act plus “special charges” of up to $45 an hour. Old Bridge also charges up to $1,090 for certain large maps. The amendments are allowed by a provision that received little publicity when the bill was written. Under C.47:1A-5 (b) and (c), municipalities have to follow the 75 cents rule “[e]xcept as otherwise provided by law or regulation.” This language was highlighted at a meeting of the League of Municipalities in November in Atlantic City, N.J., where Irvington Township Clerk Harold Wiener gave a seminar on the act. Wiener told the crowd he was a “self-proclaimed dinosaur” and “an advocate of good, open government [who] saw no problem complying with the law.” “However,” he continued, “I did not foresee what was about to take place.” Irvington was “inundated” with requests for hundreds of documents, mostly from one man, whom Wiener identified in his lecture as “JJ.” JJ made 253 requests in the first five months of the act, creating a file that would need “an 18-wheeler to get it here, well at least a 20-foot step van,” Wiener said. Seeing a potential “horrible of horribles” in unforeseen costs from zealous requesters was audience member Robert Podvey, West Caldwell, N.J.’s town attorney and a partner with Newark, N.J.’s Podvey, Sachs, Meanor, Catenacci, Hildner & Cocoziello. Podvey went back to his office and wrote West Caldwell’s ordinance. In West Caldwell, it might now be quicker to obtain a police report by not invoking the act, according to Podvey. Mentioning the act triggers the ordinance, he says. “Once OPRA is invoked, then we’ve got to follow it,” he says. And league attorney Kole keeps Old Bridge’s ordinance on file as a model for municipalities that want to fashion something similar. Most of the extra charges are legitimate, Kole says, because requesters often do not realize the expense of producing certain records. Irvington’s $600 tax maps, for instance, are 24 inches by 36 inches; the cost covers 79 of those sheets and they have to be ordered specially from the private company that draws them. “They can’t adopt an ordinance that changes the statute,” Kole says, noting that extra charges have to be based on the cost of providing records, not a town council’s desire for an extra revenue stream. “I would never agree that it could be fairly easily gotten around,” she says. WORRIED ABOUT BIG BROTHER Most municipalities have a JJ, a gadfly who does not trust elected officials and is happy to make their lives difficult. In this case, JJ is actually Jeff Jacobs, president of J.T. Actif, an athletic apparel company. His many requests were spurred when Irvington declared his company’s neighborhood a blight zone, and tried to forcibly remove him from his building. He’s hoping to find something that will help him stay in business. “They say, ‘Well, we want your building to be put in a big-box warehouse. Bye! We’ll pay you fair market value, we’ll help you move,’” Jacobs says. “But if your building costs you $20 a square foot now and you have to move, it might be $2,000 a square foot [at the new place], that’s your problem.” Jacobs’ OPRA requests have even extended to an examination of the credentials of Village Administrator John Gross in neighboring South Orange, N.J. Jacobs was allowed into Gross’ office to look at the certificates on his wall. That same evening Jacobs received a telephone call from a village trustee — a position similar to town councilor — who wanted to know what he was up to. “I find that strange,” Jacobs says. “I assumed it would be in confidence. That’s a little weird.” Big Brother is not spying on requesters in South Orange, protests Gross: “That public information request is public information.” He admits that most requesters are probably not aware that their requests are not confidential, but he says, “There’s certainly nothing improper about that.” Besides, he adds, Jacobs and the trustee in question are friends, and Jacobs knew it was not confidential because the mayor was in the office at the same time. For every anecdote about a minor functionary drunk on the power of OPRA’s fine print, there are thousands of requests that are routinely fulfilled, say Kole, Wiener, Podvey and Gross. Thomas Cafferty, counsel to the New Jersey Press Association, which lobbied for the passage of OPRA, agrees. His clients, who tend to be newspapers seeking controversial information from government officials, are generally pleased with the results of OPRA, he says. Cafferty, of McGimpsey & Cafferty in Somerset, N.J., this month had oral argument in front of the Appellate Division in two OPRA cases, Serrano v. South Brunswick, A-002708-02-T5 and A-003110-02-T5, and Courier News v. Hunterdon County Prosecutor’s Office, AM-414-02T2. Both cases raise the question of when can the public demand copies of tapes from 911 telephone calls. There probably is more paperwork for requesters to wade through since passage of the act, but that’s the price of increased access, Cafferty says. “I can say candidly, if I’m a records custodian, that I probably would want a paper trail because I’m under timeframes to respond, so I’d want some evidence of when I receive a request and when I respond.” Cafferty notes, however, that although the act states that access shall be granted “as soon as possible,” most bodies appear to be leaning heavily on the language that adds, “but not later than seven business days.” A town administrator who asked not to be named says he supports the act, but thinks open-government activists do not realize how onerous OPRA can be. “It costs a small municipality a similar amount to respond to these requirements as a large municipality, but it’s certainly a hit, percentagewise, on a small municipality.” That’s little comfort to Teeters, who is fighting before the Government Records Council for sanctions against DYFS. She alleges that DYFS initially lied when it denied her request by saying the investigation into ACHI did not exist. When it did eventually release the report, it sent her a letter insisting that she not show it to anyone else under N.J.S.A. 9:6-8.10b, which states: “Any person who willfully permits or encourages the release of the contents of any record or report in contravention of this act shall be guilty of a misdemeanor and subject to a fine of not more than $1,000.00, or to imprisonment for not more than 3 years, or both.” The record was released to her “inadvertently,” according to a March 5 letter from DYFS lawyer Christian Arnold, a deputy attorney general. “It relates to an investigation of child abuse, and information obtained as part of that investigation, and should not be considered public information,” Arnold wrote. He declines to comment further. “When I read about OPRA passing it was like, Wow, this is written for me. I’ve been waiting for this,” says Teeters. Eight months later, she’s more cynical. “The bottom line is that DYFS has not done well with my OPRA request. They have made a myriad of mistakes with this. It’s left us very frustrated.” ACHI was shuttered by DYFS last August, one month after her request.

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