Residents of other states are not entitled to public records in New Jersey, since they don’t live here, they don’t vote here, and in most cases they don’t pay state or local taxes here, a state judge said.
Superior Court Judge Nelson Johnson said a former Woodbine resident who has made more than 100 requests for Cape May city records under the Open Public Records Act is not entitled to them.
Harry Scheeler, 37, of Concord, North Carolina, sued the city for records relating to legal bills over its convention center, among others.
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“It’s clear from Mr. Scheeler’s certification that a non-taxpaying, non-citizen, with an over-sized interest in New Jersey local politics wishes to assert equal claim to exercise statutory rights of New Jersey citizens to engage in the political processes of our state, without coming to our state, nor assuming any of the responsibilities or incurring the obligations of a citizen of New Jersey,” Johnson wrote in his opinion.
“Query, at the time the OPRA was adopted, did the members of the New Jersey Legislature contemplate that they were authorizing an out-of-state gadfly to repeatedly bombard local governments with demands to produce public records?”
Johnson said such requests tie up public employees from serving their primary constituency — residents and taxpayers.
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Johnson’s ruling stands in opposition to another recent state Superior Court decision involving Scheeler and the Atlantic County Joint Insurance Fund. Scheeler in December won that case, despite the insurance group’s argument that Scheeler as a nonresident had no right to its documents.
Judge Ronald Bookbinder found otherwise, noting that “any limitations on the right of access shall be construed in favor of the public’s right of access.”
Bookbinder ordered the JIF to pay Scheeler’s legal fees and costs of more than $18,000.
Cape May officials praised Johnson’s decision. Mayor Ed Mahaney said Scheeler was helping those in the city who have a political agenda.
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“As a result, city government was subjected to widespread and inaccurate publicity to the detriment of … governing body members and dedicated city employees,” Mahaney said in a statement.
City Solicitor Anthony Monzo in a statement called Scheeler’s records requests outrageous. He said the ruling was a victory for every local government in New Jersey.
“Scheeler has turned OPRA into a cottage industry and has made a career out of badgering records custodians statewide while sitting at his home in North Carolina,” Monzo said.
Scheeler said he requested the records largely on behalf of city residents who were intimidated by public officials and feared reprisals if they solicited the records under their own names.
While he does live out of state now, Scheeler said he always intended to return to New Jersey.
But Scheeler said out-of-state residents have ample reason to request public records. Many have second homes in New Jersey. Others might be thinking of retiring there. And still others might have aged or infirm relatives who are unable to make pertinent requests themselves.
And many out-of-state news media cover New Jersey, he said.
Scheeler said he plans to appeal, if necessary. In the meantime, he said he intends to keep up his efforts.
“This is far from over. They want me to give up. And it’s just not going to happen,” Scheeler said.
The court characterized Scheeler as a gadfly and “professional requestor” who was imposing himself on city affairs for no apparent reason. Johnson took issue with some of the language Scheeler used in his correspondence with Cape May officials.
“An objective reading of plaintiff’s emails might characterize them as rude, bellicose and obnoxious,” the judge said. “Any further discussion of his bullying comments would lend them a dignity they do not deserve.”
Scheeler said his writing became more aggressive only when he sensed the city was dragging its feet or otherwise trying to thwart access to records. He took issue with Johnson’s suggestion that his records requests were a “cottage industry.”
“Their statement that I’m doing this as a career is ridiculous,” he said. “If anything it costs me money.”
The American Civil Liberties Association of New Jersey said state residents will suffer if public access to records is restricted.
“Society as a whole suffers when government agencies are permitted to operate in secrecy,” said Iris Bromberg, the ACLU’s transparency law fellow.
For example, national nonprofit groups routinely uncover corruption or dysfunction in one state and examine other states to identify and compare similar problems.
She said lawmakers repeatedly used the phrase “any person” in the records law and did not place restrictions on how that was defined.
John Paff, a government watchdog from Somerset, regularly requests public records. He said Johnson’s ruling seems to contradict the state’s intent to allow people to request records anonymously.
“This is going to create more litigation,” Paff said. “Is a person’s interest in the affairs of a municipality sufficient? What if they’re a taxpayer? What if they belong to out-of-state or national media? What about the blogger?”