Can the government deny public records to a requestor because they don’t want that information automatically posted to a third-party website that anyone can access?
A Monmouth County Superior Court Judge is set to decide Nov. 26.
Gavin Rozzi, creator of OPRAmachine.com, and two others – Jennifer Coombs, who operates ASK NJ Media Co. and Time to Change – Jersey Style, and independent journalist and site administrator Jeff Epstein – have filed suit against various Monmouth County government officials for denying requests filed through that website.
The county, which fulfills its Open Public Records Act requests through the law offices Cleary Giacobbe Alfieri Jacobs, LLC, in Matawan, had asked that requests be made with a “secondary” or “alternative” email address, not through OPRAmachine.
OPRAmachine.com allows the public to file records requests. The website describes it this way: “You choose the public authority that you would like information from, then write a brief note describing what you want to know. We then send your request to the public authority. Any response they make is automatically published on the website for you and anyone else to find and read.”
Email exchanges between attorney Catherine Kim and Rozzi, Coombs and Epstein show that requests were denied when alternative emails were not supplied, as per the county’s policy, adopted at some point over the summer, of not releasing records that automatically post those records to a website.
Up to sometime in the early summer, it appears Monmouth County government agencies had honored requests made through OPRAmachine.
The policy to reject OPRAmachine-filed requests happened after county employees didn’t redact bank account numbers and other personal information about Monmouth County Prosecutor Christopher Grammicioni and First Assistant Lori Linskey, Rozzi said. (The records, published to the site, were redacted by Rozzi.)
“The only reason the Defendants have given Plaintiffs for why they are not providing OPRA responses to OPRAmachine is that they are worried about unauthorized disclosure of records,” Walter Luers, Esq., wrote in the court filing. The Clinton, New Jersey-based attorney is representing Rozzi, Coombs and Epstein. He’s also the president of The New Jersey Foundation for Open Government. “First, that is not Plaintiffs’ problem, that is Defendants’ problem.”
An undated policy from Monmouth County Clerk Marion Masnick, provided by Kim to Jersey Shore Online Oct. 2 through an OPRA request, stated that “Due to the demand and volume of the requests and records, the county recognizes that it is possible to inadvertently release records with confidential and/or privileged information. Regardless of our diligent efforts to review and adequately redact confidential or privileged information, the county, like any organization, is susceptible to human error.
It continued: “We respectfully request that all OPRA requestors provide an address or e-mail address that permits the county to correspond directly with the requestor and securely provide access to the records. The county will deny any requests for records if the responses, including attachments, are automatically posted on any websites.”
In his brief, Luers pointed out that the county needing to redact documents does not give them the authority to deny releasing records to the OPRAmachine address. Nothing prevents those records, redacted or not, from being shared online. The county’s policy “punishes” OPRAmachine users.
“This does not restrict the requestor from retaining, disseminating, distributing, or copying the records after receipt. However, the requestor may be liable for any unlawful disclosure of confidential and/or privileged information. The county does not waive any privilege or confidentiality within its message or the released records,” the county policy stated. “The county wishes to work alongside the requestor to provide the records requested and also prevent any inadvertent disclosure of confidential and/or privileged information. We appreciate your courtesies and future cooperation.”
Since announcing the lawsuit at the end of September, Rozzi has been working on changes to OPRAmachine. In an Oct. 9 email to Jersey Shore Online, he explained he’s been working to address privacy concerns raised by Monmouth County.
“By the end of the month, we anticipate that our changes will allow OPRAmachine to detect and automatically redact social security numbers to protect privacy interests, something that no other proprietary public records solution (that we are aware of in NJ) does,” Rozzi wrote.
In a separate email the same day, Rozzi explained exactly why he filed suit.
“We want the court to order Monmouth County to do as they have previously done and honor the legally valid public records requests submitted to them by our users. We hope that the lawsuit will stop the county from treating public records requests differently because they originate from the OPRAmachine service. To remedy the county’s obstruction of the public records request process, we are urging the court to strike down the county’s unprecedented and overreaching policy that limits access to public information and find them in violation of the law.”
A follow-up email to Kim, and her associate Sean Kean, was not answered by press time.
OPRA is the law that gives citizens access to most public records, with some exceptions. According to “A Citizen’s Guide to the Open Public Records Act,” written by the New Jersey Government Records Council, “a public record under the common law is one required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law, or directed by law to serve as a memorial and evidence of something written, said, or done, or a written memorial made by a public officer authorized to perform that function, or a writing filed in a public office. The elements essential to constitute a public record are that it be a written memorial, that it be made by a public officer, and that the officer be authorized by law to make it.”
In its broadest sense, a requestor must submit in writing the request for an existing document or file or recording. While most government agencies ask that the requestor use their OPRA form, it’s not required, although the request must state that it’s an OPRA request. The government agency has seven business days to provide the item, or ask for an extension. Requests can be denied if the item in question does not exist, or is not covered under OPRA.
Jersey Shore Online reached out to the Government Records Council for comment on OPRA, and how the law’s framers didn’t anticipate 21st Century technologies. They did not respond by press time.