Challenging the New Jersey Open Public Records Act Green Acres Exemptions

Files (Photo credit: Artform Canada)
By Christopher Lotito

There is currently a battle being fought in the New Jersey Government Records Council's (GRC) adjudication system over whether or not the public records exemptions for Green Acres purchases are valid.  Specifically, the NJ Department of Environmental Protection (NJ DEP) has asserted a position that the existence of Green Acres purchase negotiations, even when the property in question is being donated rather than bought, are sufficient to block the entirety of the relevant case file from eligibility for release under NJ OPRA.

If the NJ DEP's defense is affirmed by the GRC, it could have far reaching consequences in that even records which relate only to the physical site in question as well as records which were previously public, could be rendered exempt from OPRA requests simply by being physically placed into a negotiations related file sleeve or else being otherwise designated by the agency as relating to a pending Green Acres acquisition.  The definition of words like "pending," "binding contract," and other terms are also at issue here as the case in question regards a property which is being donated and which also has had only a draft contract issued.  The average person might reasonably conclude that NJ DEP's reading of the Green Acres and OPRA exemptions are quite broad.  That is to say, within their interpretation, the majority of the power lies with the state agencies in question and NJ OPRA does not permit citizens access to these documents.

If, on the other hand, the GRC asserts that some or all of the records are eligible for release and that the Green Acres exemption does not abridge the right of the people to receive records necessary to inform the public about pending purchases by state agencies, such a finding would set a strong precedent in favor of citizens' rights and open government for a state which has been dubbed one of the most highly regulated in the nation.

For some background, the case in question is GRC 2014-84 and it pertains to a request by myself, Christopher Lotito, for records related to the former Weis Ecology Center site of Ringwood, NJ which is set to be donated by its owner, NJ Audubon, to the NJ DEP.  The Department of Environmental Protection has asked NJ Audubon to pay for and carry out the demolition of several historic buildings on the site.  If NJ Audubon agrees to demolish those buildings, that destruction of history will happen without the input of the public.  On the other hand, if the NJ DEP were to obtain the property, they would likely need to accept public comment in a process far more rigorous than anything a private entity like NJ Audubon would need to adhere to.  However unintentional, by using NJ Audubon to carry out this demolition work, the NJ DEP may effectively sidestep the rigorousness and due process the law provides for the destruction of historical and cultural heritage sites.

In February and March of 2014, the NJ DEP identified some 650 pages of documents related to the Weis Ecology Center site and responsive to the NJ OPRA request I had submitted.  After initially claiming that the request was overly broad, the NJ DEP capitulated on this point, resulting in an amended denial of access complaint with the NJ Government Records Council, which identified the 650 pages not subject to release under NJ OPRA exemptions and Green Acres exemptions.  An amended response from the complainant (me), asserts that the majority of these documents pre-date any NJ DEP negotiations for acquisition of Weis and thus cannot be now denied from the public record (something specifically affirmed by NJ state statute).  Further, that complainant response notes, among many other legal arguments, that not even redacted versions have been offered (a typical remedy when agencies and citizens reach an impasse) and that the application of NJ OPRA and Green Acres exemptions in this way abridges the rights of citizens to participate in informed conversation with their leaders, something clearly distasteful and at odds with the spirit of NJ OPRA.

In response, the NJ DEP issued a 7 page rebuttal with contributions from Matthew Coefer, Chief Records Custodian for the NJ DEP, Ryan Benson, Deputy Attorney General, and Lisa Stern, Supervising Program Specialist.  That response asserts that the public can participate in government without being informed (by these records), that the entire contents of a case file become exempt from OPRA when Green Acres negotiations begin, that the release of any of these 650 pages would damage the NJ DEP's competitive advantage in negotiations, and that even redacted versions of these documents are exempt from NJ OPRA.  In other words, NJ DEP has taken a hard line here.

Whether the NJ GRC shares the NJ DEP's interpretation of the NJ OPRA and Green Acres exemptions remains to be seen, but it seems likely that this case could set a precedent for future records requestors seeking to overcome denials of access based upon similar grounds.  It is a matter of some concern to the author that publishing an account such as this should not have a negative impact upon the case in question, however I believe that it is the right of people to be aware of this discussion which is now occurring about what their right to public records may be in the future.  As always, I have done my best to provide a well reasoned view of the situation which confines itself to the facts.

The author is happy to provide the legal documents relevant to this case to any party, as they themselves are a part of the public record and will be added to the NJ GRC decisions webpage (at least in part) upon the conclusion of these proceedings.

At ChristopherLotito.Org, subscribers will find all the information they need to educate themselves and their families about the issues that effect their lives.  A Drew University graduate, Christopher Lotito is a 10 year veteran volunteer within his municipal government in Pequannock, New Jersey.  Lotito is also an accomplished local author and possesses a great depth of knowledge in both New Jersey history and flood control issues which he puts to use as an independent researcher.

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