The Open Public Records Act, or OPRA, was intended to make government more accessible to the average citizen. But officials’ accounts and reviews of OPRA requests to area governments show the law has largely become a tool of busineses, lawyers, and developers.
Consultants and other professionals clog municipal offices with requests for zoning documents, financial disclosure forms and police reports. And the law meant to subject government to the light of scrutiny can sometimes be used for shady political purposes.
In 2007, then-Atlantic County Democratic Chairman Ron Ruff requested information on travel expenses for Atlantic County Executive Dennis Levinson, a Republican who was seeking re-election, and a female employee in his office. The request asked for documents about their dining arrangements and hotel accommodations.
There were no such records. But by asking, Levinson said a political broadside was fired and the rumor mill in county offices began turning. Levinson, who was then running for re-election against Democrat James McGettigan, said he has never submitted a single expense for government travel.
“It was a slimy tactic to imply some sort of relationship there, to smear my name and my reputation,” Levinson said. “The OPRA law was created to allow citizens access to public documents. But this is what they use it for, their opposition research. And they also use it to harass. I mean, look at this. They’ll try to ruin your family.”
A review by The Press of Atlantic City of records requests made of area agencies shows relatively few come from private citizens. Requests to Atlantic City government during the past year mostly came from attorneys seeking copies of tort claims, incident reports and property records.
At state agencies, the situation is not much different.
The New Jersey Department of Environmental Protection determined in 2008 that it received the most OPRA requests of any state department since the law’s inception in 2002, with 69,000 records requests. The department with the next highest number — Law and Public Safety — received 6,200 requests.
Nearly two in three OPRA requests at state agencies were directed to the DEP, which handled 12,434 cases last year. The agency estimates it spent $18 million between 2002 and 2008 fulfilling records requests.
The vast majority of those requests — 97 percent — were from consultants, lawyers and businesses. Members of the public accounted for just 1 percent of the records requests from 2002 to 2008, the DEP found.
“There are companies out there, professionals, who, rather than doing their own homework, may choose to use OPRA as a one-stop shop,” DEP spokeswoman Elaine Makatura said. “It runs the gamut — consultants, businesspeople, legal requests. It’s a democratic process, but it should not be abused.”
Requests from people and corporations from outside New Jersey also cost the state hundreds of thousands of dollars each year. In a 2008 report, the DEP said 21 percent of its requests came from parties outside the state, amounting to more than $700,000 in annual costs.
“The requesters benefit from accessing the NJDEP’s records but, unlike New Jersey’s taxpayers, do not bear any of the costs incurred in administering the NJDEP’s OPRA program,” the report reads.
Ron Miskoff, president of the New Jersey Foundation for Open Government, said New Jersey residents may be discouraged from using OPRA because they are repelled by the “siege mentality” taken by local government employees.
The employees “feel that if a request comes in and it doesn’t work, (the clerks) just deny it without any further explanation,” he said. “There’s an education process that people need to get acquainted with, but they’re not getting it from people that know the law. And then everybody just gets frustrated.”
Miskoff referred to a conversation with one New Jersey mayor about the negative impact of OPRA on local government. The mayor, whom he would not identify, recalled one woman who had requested mountains of documents regarding a high school being built in the municipality.
“He said he knew what she was looking for, but she wasn’t asking for the right documents,” Miskoff said. “I said, ‘Well, are you going to tell her what she needs to request?’ ‘Of course not,’ he said.”
At the local level, political operatives use OPRA to cast a net to find dirt on election opponents. Requests similar to those made targeting Levinson are filed at all levels of government during election season:
- Lawyers from the Law Offices of Riley & Riley in Mount Holly, Burlington County, began requesting Atlantic City Councilman Marty Small’s financial disclosure forms months before last year’s Democratic mayoral primary. The information obtained soon came out in attack fliers and radio ads claiming Small failed to report a source of income.
- Former Vineland Mayor Perry Barse continued to look for dirt on current Mayor Bob Romano after Romano defeated Barse in 2008. His requests included what city car Romano drives, what the odometer reads and how much his gas cost the city. Barse’s opponents put OPRA to use as well in late 2007 and early 2008, digging up document after document to try to use against him.
- Rob Cresson, executive director of the Ocean County Republican Party, requested information about any checks returned by the clerk’s office to Michele Rosen, a Democratic watchdog and municipal chairwoman in Ocean Township. The Republicans have sought to make an issue of Rosen’s personal financial situation, arguing that her alleged problems could bleed into her potential oversight of public finances.
But no individual or company comes close to rivaling the number of requests filed by Rosen each year.
The paper requests filed solely by Rosen in the past two years overflow from a cardboard box on the floor in Ocean County Clerk Betty Vasil’s office, rivaling the number of all other requests combined. Vasil estimated that Rosen’s total requests in 2009 numbered more than 500.
In Stafford Township, the approximately 500 requests filed in 2009 follow a similar trend. The majority were from individuals or attorneys requesting police reports and companies seeking tax or environmental records on certain properties.
And every three years, there is a flurry of requests right before the township’s spring elections.
Last year, those requests were filed mostly by the Democratic campaign, which had sought records on the salaries of various township employees.
Vineland City Clerk Keith Petrosky said election season is a grueling time for his department.
“You get these political operatives who just want to tear apart their opponents,” Petrosky said. “In most cases, they don’t even find what they’re looking for, because nothing’s there.”
The O’Boyle factor
But finding something specific may not be the goal of some public-document seekers. For Martin O’Boyle, it’s about bulk.
O’Boyle, a Florida resident with a home in Longport, has obtained plenty of documents from the borough. He has long since lost count but said, “It’s got to be in the thousands.”
In 2009, Longport, a small shore borough with a population of slightly more than 1,000, received 857 OPRA requests at Borough Hall. That number far exceeds the 514 total requests received during the same year in Atlantic City, which has nearly 40 times Longport’s population and is commonly subject to OPRA requests.
Of the requests in Longport, 684 came from O’Boyle, a member of his family, or one of his businesses or organizations. That’s equivalent to 80 percent of the borough’s requests.
O’Boyle said the requests are for reasonably obtainable information. He criticized the borough for its inability to properly respond to his requests, which sometimes are filed 10 or more at a time. But his opponents in Longport say his requests are being used to settle a score with municipal officials.
The battle between the O’Boyles and the borough began when the family was charged with a zoning violation at their home in 2006, allegedly for having illegal living space on the first floor. O’Boyle then began requesting documents regarding the citation and later succeeded in getting the violation dismissed. But the requests have not stopped since then.
Longport officials say O’Boyle is using OPRA to intimidate and harass government employees, similar to the tactics he has used in the civil court system. In November 2006, a Tennessee court issued more than $1.2 million in sanctions to O’Boyle for engaging in frivolous litigation “that would maximize the inconvenience and cost to the defendants,” Judge W. Dale Young of Blount County, Tenn., wrote in his opinion.
A few months later, Young overturned most of the financial penalties against O’Boyle but insisted on a $5,000 penalty to the courts.
Longport Mayor Nick Russo, the latest city leader at odds with O’Boyle, said he has concerns about the privacy of his residents as it relates to O’Boyle’s requests. He pointed to various requests for Russo’s e-mails to or from residents, who he said could be scared off if they learn their private e-mail addresses have been released.
“Will that have an adverse effect on participating” in government? Russo asked. “I think that has an adverse effect and doesn’t attain the goal that we’re all trying to achieve, and that goal is for public participation.”
O’Boyle eventually admitted that not all of his requests are for vital information.
“If I were to thumb through and look at all of the OPRA requests, I might look at one and say, ‘I don’t know what I was thinking when I made that one,’” he said.
O’Boyle’s dissatisfaction with the borough’s response to his requests has led to new plans for him to file all of his requests in one OPRA form, technically giving Longport officials just seven days to comply with dozens of requests under the law.
“That’s about as close to busting (chops) as you can get,” O’Boyle said. “I’m going to do it solely for a point.”
But he continues to contend that his overall reasoning is not to prove points but to get important information. And it does not appear that O’Boyle’s requests will end any time soon.
“If they’re doing things wrong and their conduct is affecting you and/or your family,” he said, “why can’t you do it forever?”
A kindler, gentler OPRA request
Some people still use OPRA according to the law’s original intent.
When Ventnor resident Charles Cannon Jr. saw a school district employee shooting video of the old Atlantic City High School before its demolition in 1999, he yearned to see the footage.
Cannon, a 1956 graduate of the school, collects memorabilia of all things Atlantic City. He wanted to remember his alma mater before it would become a parking lot off Albany Avenue.
“I took pictures with my camera inside, but not video. I just thought it would be nice to have video to go with it,” he said.
Cannon sent an OPRA request to the Atlantic City Board of Education for copies of the tapes. He already had the school’s old class bell, as well as yearbooks and graduation programs. The board said it did not have any such video. But Cannon knew better.
He appealed to the Government Records Council and, more than a year after the request, finally prevailed.
“After a year, they came up with the tapes of the outside, eight hours of footage,” he said.
Cannon said he thinks there are more tapes, referenced in the video he has, that elude his grasp. Still, he was happy with his victory.
But requesters such as Cannon are uncommon.
Russo equates OPRA to the laws allowing absentee and messenger ballots, an alternative to traditional voting designed to help out-of-town or disabled voters that has been manipulated to benefit politicians throughout Atlantic County.
“When these laws were first created, it was a wonderful concept. It gave everyone the ability to vote. But the law was abused, and it had to be changed,” Russo said. “I think we have the same exact situation with OPRA — a great concept for openness, but it’s being abused.”
Staff writers Michael Miller, Daniel Walsh and Lee Procida contributed to this report.
Contact Michael Clark: