CJ GRIFFIN

PashmanStein

Counsel
cgriffin@pashmanstein.com
Direct: 201.270.4930

V\lalderHayaen!l
A Ptot1Kslonal Corporation

October 3,2016
VIA OVERNIGHT MAIL
Hon. Georgia M. Curio, A.J.S.C.
Cumberland County Courthouse
60 West Broad Street, Courtroom 346
Bridgeton, New Jersey 08302
Re: Heimlich v. Educational Information & Resource Center, et al.
Docket No. GLO-L-799-16
Our File No. 1749-001
Dear Judge Curio:
Please accept this letter brief, in lieu of a more formal brief, in Reply to Defendant's
Opposition to Plaintiffs Order to Show Cause.
PRELIMINARY STATEMENT
Two judges in this State (Judge Bookbinder in Burlington County and Judge Troncone in
Ocean County) have ruled that OPRA permits "any person" person to file OPRA requests. They
came to that conclusion based on OPRA's clear language. While the opening declaration of
OPRA references "citizens of this State," every other provision of OPRA says that "any person"
may utilize the statute. In fact, at least ten provisions of OPRA provide that "any person" may
inspect government records, "any person" person may purchase copies of records, "any person"
may institute a proceeding to challenge a denial of access, and so forth. The word "citizen" is
not used in any ofOPRA's operational provisions.
Indeed, when the Legislature enacted OPRA, it repealed every single operational

provision of the Right to Know Law ("R TKV') that referred to "any citizen" and replaced them
with ten new operational provisions that refer to "any person." Defendants ignore this change,
but the judicial case law is clear that when the legislature makes a change in statutory language
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Hon. Georgia M. Curio, A.J.S.C.

October 3, 2016
Page 2

that the courts are to subscribe meaning to those changes. In denying Plaintiff's OPRA request,
Defendants ignored Judge Bookbinder and Judge Troncone's decision and instead relied solely
upon Judge Johnson's decision. Sadly, the harm that was predicted when Judge Johnson decided
Scheeler v. Cape May has come true: an opinion 'that was decided in part as a way to keep a
single "gadfly" from filing requests has now been used to deny access to an investigative
journalist simply because he does not reside in New Jersey.
This Court should rule in accordance with Judge Bookbinder and Judge Troncone and
hold that the plain language of OPRA permits "any person" to file an OPRA request and "any
person" to institute a proceeding to gain access to government records. Such a decision not only
comports with OPRA' s plain language, but also with the public policy of this State and the
Legislature's

instruction that OPRA should be "construed in favor of public access." The Court

should also reject Defendants'

suggestion that the Court stay this matter until the appeal in

Scheeler v. Cape May is decided, as they have cited no support for such a proposition.

Access to

government records should not be halted for 12-18 months simply because a Law Division judge
in another county has issued an unpublished opinion that is on appeal.

LEGAL ARGUMENT
I.

PLAINTIFF, AN OUT-OF-STATE JOURNALIST, HAS STANDING TO FILE

OPRA REQUESTS BECAUSE "ANY PERSON" MAY ACCESS OPRA
Defendants argue the plain language of OPRA says that only citizens of this State may

utilize OPRA. It is true that OPRA begins by stating that government records "shall be readily
accessible ... [to] the citizens of this State." N.J.S.A. 47:1A-1. Defendants insist that we should
stop reading there and wholly ignore numerous other provisions of OPRA which clearly state
that "any person" may inspect government records, "any person" may purchase copies of

Hon. Georgia M. Curio, A.J.S.C.

October 3,2016
Page 3

government records, "any person" may request access to a government record, and "any person"
may institute a proceeding to challenge a denial of access.
N.J.S.A.47:1A-6.

See N.J.S.A. 47:1A-5(a), (b), (f);

The issue in this case is whether more than ten references to the rights of "any

person" to utilize OPRA are negated by the single use of the phrase "citizens of this State."

For

the reasons argued herein, this Court should hold that "any person" may use OPRA, including
Plaintiff (who is an out-of-state journalist)

and :'other .non-residents,

businesses,

and media

companies.
A.

Where There is Any Ambiguity, OPRA Mu~,t Be Construed in Favor of

Access and in Accordance With the State's Public Policy of Transparency

Defendants claim that the "plain language" of OPRA establishes that only "citizens" can
utilize OPRA is simply at odds with OPRA's statutory scheme.

Two Superior Court judges

(Judge Bookbinder and Judge Troncone) have agreed with Plaintiff that OPRA permits "any
person" to utilize OPRA. Thus, at most, Defendants can only argue that OPRA is ambiguous as
to whether access is limited to "citizens" or open to "any person."

"Where [OPRA] is unclear,

the Court has resolved any ambiguities in a manner consistent with its broad purpose."

Paff v.

Ocean Cty. Prosecutor's Office, 446 N.J. Super. 163, 181 (App. Div. 2016) (citing Fair Share
Hous. Ctr" Inc. v. N.J. State League of Municips., 207 N.J. 489, 502 (2011); Sussex Commons
Assocs. v. Rutgers, 210 N.J. 531, 540-41 (2012.

Accord In re New Jersey Firemen's Ass'n

Obligation to Provide Relief Applications under Open Pub. Records Act, 443 N.J. Super. 238,
265 (App. Div. 2015) (noting ambiguities should be resolved in favor of disclosure of records).
This is because the Legislature has instructed that "OPRA 'shall be construed in favor of the
public's right of access."

Paff, supra, 446 N.J. Super. 181 (quoting N.J.S.A. 47:1A-1); Serrano

v. S. Brunswick Two., 358 N.J. Super. 352, 366 (App. Div. 2003) (noting ambiguities in OPRA

Hon. Georgia M. Curio, A.J.S.C.

October 3, 2016
Page 4

"must be resolved 'in favor of the public's right of access[.]"').

It is also "elementary that legislation must be construed consistently with its motivating
policy objectives." New Jersey Land Title Ins. Rating Bureau v. Sheeran, 151 N.J. Super. 45, 51
(App. Div. 1977) (citing State v. Gill, 47 N.J. 441, 444 (1966.

"If statutory expression is

susceptible of two meanings, that meaning will be adopted which comports with the general
public policy of the State as manifested by its legislation rather than that which runs counter to
such policy." Houman v. Mayor and Council of Borough of Pompton Lakes, 155 N.J. Super.
129, 152 (Law Div. 1977) (citing Civil Service Dep't. v. Clark, 15 N.J. 334 (1954.

This is

because "public policy, once established, carries the credentials of that which is right, and in the
doubtful or questionable expression, or in the imperfect statement, [courts] will presume the
Legislature intended to do that which is right."

Ayres v. Dauchert, 130 N.J. Super. 522, 532

(App. Div. 1974).

The public policy underlying OPRA has been repeatedly stated by our courts. OPRA's
"purpose is 'to maximize public knowledge about public affairs and to minimize the evils
inherent in a secluded process.'"

Mason v. City of Hoboken, 196 N.J. 51, 64 (2008). OPRA's

"promise of accessible public records" enables the public to "playa

wasteful government

spending and guarding against corruption

Commons Associates, LLC v. Rutgers, 210 N.J. 531, 541 (2012).

request records under OPRA, as every single one ofOPRA's
interpretation

that most advances OPRA's

watchful role in curbing

and misconduct. '"

Sussex

Permitting "any person" to

operational provisions states, is the

stated purpose and the State's public policy of

transparency.
B.

The Legislature's Repeal of the RTKL's Operating Provisions is Significant

and Cannot Be Ignored

Hon. Georgia M. Curio, A.J.S.C.

October 3, 2016
Page 5

OPRA expressly repealed every single operational provision of the RTKL.

Section 2 of the RTKL, which provided:

Every citizen of this State, during the regular business hours

maintained by the custodian of any such records, shall have the
right to inspect such records. Every citizen of this State shall also
have the right, during such regular business hours and under the
supervision of a representative of the custodian, to copy such
records by hand ...
. . . If the custodian of any such records shall find that there is no
risk of damage or mutilation of such records and that it would not
be incompatible with the economic and efficient operation of the
office and the transaction of public business therein, he may permit
any citizen who is seeking to copy more than 100 pages of records
to use his own photographic process ...
[~p.S.A. 47:IA-2, L.1963, c.73, 2 (Repealed by L.2001, cA04
(OPRA (emphasis added).]
Further, OPRA repealed Section 2.1 of the RTKL, which provided:
The right of the citizens of this State to inspect and copy public
records pursuant to [the RTKL] shall with respect to the copying of
records maintained by a system of data processing or image
processing, be deemed to refer to the right to receive printed copies
of such records.
lli.J.S.A. 47:1A-2.1, L.1994, c.140, 8 (Repealed by L.2001, cA04
(OPRA (emphasis added).]
Finally, OPRA repealed Section 4 of the RTKL, which provided:
Any such citizen of this State who has been or shall have been
denied for any reason the right to inspect, copy or obtain a copy of
any such record as provided in this act may apply to the Superior
Court of New Jersey by a proceeding in lieu of prerogative writ for
an order requiring the custodian of the record to afford inspection,
the right to copy or to obtain a copy thereof, as provided in this act.

[N.J.S.A. 47:1A-4, L.1963, c.73, 4 (Repealed by L.2001, cA04

It repealed

Hon. Georgia M. Curio, A.J.S.C.

October 3,2016
Page 6

(OPRA (emphasis added).]

Defendants ask this Court to ignore the fact that every single one of those provisions
were replaced with new provisions that permit "any person" to request records or institute
judicial proceedings under OPRA. It is well-settled law that "[a] change of language in a
statute

ordinarily

implies

a purposeful

alteration

DiProspero v. Penn, 183 N.J. 477, 494 (2005).

in [the] substance

of the law."

See also Kasper v. Bd. of Trustees of

Teachers' Pension & Annuity Fund, 164 N.J. 564, 577 (2000) ("When an amendment is
concerned, the Legislature cannot be presumed to have regarded the change as meaningless.
On the contrary, the general rule is that a change is presumed to evidence a departure

from

the old law.").

c.

No Published Opinions Have Addressed This Issue

Defendants string cite to a several cases where the courts in have referred to "citizens"
utilizing OPRA or an "informed citizenry."

(Defendants'

Brief at 3).

It is important to

recognize that there is no published opinion in this State in which a court has ever analyzed
whether or not OPRA or the RTKL were limited only to citizens.

Only three law division

judges have ruled on this issue, two of which have held that "any person" can utilize OPRA.
Moreover,

the references

to "citizens"

or "informed

citizenry"

in the cases cited by

Defendants are either 1) colloquial uses of the word or 2) a quotation of N.J.S.A. 47:1A-1.
Plaintiff acknowledges at first glance, if one only read the first sentence of OPRA and
undertook no additional analysis, one might assume that OPRA is limited to the "citizens of

Hon. Georgia M. Curio, A.1.S.C.

October 3,2016
Page 7

this State."]

However,

when one reads OPRA as a whole and sees that every single

operational provision permits "any person" to file an OPRA request and when one considers
the public policy of this State, the Legislature's

instruction to construe OPRA "in favor of

public access," and OPRA's legislative history, it is abundantly clear that OPRA is not limited
only to New Jersey residents.
D.

Plaintiff's Requests Advance OPRA's Core Purpose

In addition for his distaste of the plaintiff in Scheeler v. Cape May, one of Judge
Johnson's reasons for ruling that OPRA was for citizens only was that he essentially found that a
non-resident had no interest in New Jersey's records. OPRA, however, makes records accessible
to a requestor even where he has no interest in them at all. See Michelson v. Wyatt, 379 N.J.
Super. 611, 620 (App. Div. 2005) ("At the outset, we emphasize that consideration of a request
pursuant to OPRA for information maintained by a public entity does not include the reason for
the request.").

Here, Plaintiff is an investigative blogger who works with the media to expose

fraud and wrongdoing, thus his work clearly benefits the public. Most importantly, though, as
Judge Bookbinder found in Scheeler v. Atlantic County Joint Municipal Insurance Fund, Docket
No. BUR-L-990-15 (Law Div. Oct. 2, 2015), the public as a whole benefits when government
records are made widely accessible to "any person" because the release of government records
provides more transparency and more information to the public. This is especially true where the
requestor intends to use the information he finds to expose wrongdoing or to create news articles
1 Indeed, that is precisely what occurred in McBurney v. Young, 133 S.Ct. 1709 (2013). The Court cited only to
~U.S.A. 47: IA-l and referenced OPRA as being a citizens-only statute. No actual analysis was performed nor was
there any indication that the Court read OPRA. In fact, the string cite of state statutes that the Court says contain
"citizens only" provisions came from an amicus brief, thus the Court likely did not independently investigate and
analyze each and every statutory scheme on its own. See Brief of Amici National Conference of State Legislatures,
Council of State Governments, International City/County Management Association, and International Municipal
Lawyers Association, McBurney v. Young, 2013 WL 390992 at 2 (US. 2013).

Hon. Georgia M. Curio, A.J.S.C.

October 3,2016
Page 8

about them.

II.

A "CITIZENS ONLY" INTERPRETATION WILL BAR MEDIA AGENCIES

AND OTHER NEW JERSEY CORPORATIONS FROM FILING OPRA
REQUESTS
This Court should consider not only how the decision in this case affects Plaintiff, but

also the consequences its decision will have on other requestors. Judge Johnson's decisions have
resulted in not only a former lifelong resident (Mr. Scheeler) and a DC-based civil rights
organization that does work to benefit students in New Jersey (see Lawyers Committee for Civil
Rights Under Law v. Atlantic City Bd. of Educ.) being denied access to records, but also now an
investigative blogger and journalist.

When courts issue opinions that in any way limits the right

of access to government records, public agencies utilize those decisions to deny access to others
in any way that they can - even where contrary case law exists.
A "citizens only" interpretation of OPRA will bar not only out-of-state media agencies,
but also in-state media corporations and other businesses that regularly use OPRA to advance
their legitimate business interests.

The Legislature surely could not have intended such a result,

which is why it repeatedly provided throughout OPRA that "any person" may gain access to
government records.
Jersey Senate Judicial
Government
Association

Records,

This would include media agencies that helped craft OPRA.

Committee,

See New

Public Hearing Issues Dealing with Public Access to

Hearing, March 9, 2000 ("In the last year, the New Jersey Press

met with Governor's

Counsel. They produced a draft of legislation.

legislation before you is the product of the interaction of the Governor's

Press Association, Senator Martin's leadership, "and my involvement.").

. . . This

Counsel, New Jersey

[Pal14].

"The Legislature is presumed to be thoroughly conversant with its own legislation," State

Hon. Georgia M. Curio, A.J.S.C.

October 3,2016
Page 9

v. Galicia, 210 N.J. 364, 381 (2012), as well as the 'Judicial construction of its enactments."
DiProspero, supra, 183 N.J. at 494. Accordingly, we must presume that the Legislature knew
that using the word "person" would permit corporations, companies, partnerships and other
business entities to utilize OPRA. See N.J.S.A. 1:1-2 (defining citizen as including corporations
and other business entities). Conversely, we must also presume the Legislature chose not to use
the phrase "citizen" in OPRA's operational provision because it knew such a term would not
only exclude out-of-state residents and companies, but also in-state business entities such as
media agencies. Tatem v. Wright, 23 N.J.L. 429,429 (Sup. Ct. 1852) ("A corporation aggregate
is not considered as a citizen, or entitled to the privileges of a citizen, except perhaps for the
purpose of giving jurisdiction to the federal courts, for which a corporation may be considered a
citizen of the state by which it is incorporated.");

Int'l & Life Assur. Co. v. Haight, 35 NJ.L.

279, 284 (Sup. Ct. 1871) (holding tax exemption, which exempts "stocks and other personal
estates owned by citizens of this state, situated and being out of this state ...
applicable to corporations,
["citizens"]

" was not

only natural persons, because the "ordinary reference to the word

is to a natural person, and when construed otherwise, the general purpose and

spirit of the law must require it.").

It is implausible that the Legislature would have chosen to limit OPRA only to "citizens,"
given that such an interpretation would exclude both in-state and out-of-state media agencies,
businesses,

individuals, and other companies who have always utilized New Jersey's public

records laws without any issue. See,~,

Philadelphia Newspapers, Inc. v. State, Dep't of Law

& Pub. Safety, Div. of State Police, 232 N.J. Super. 458, 460 (App. Div. 1989) (Philadelphia
newspaper seeking records under RTKL and common law); U.S. Water LLC v. Middlesex Cty.

Hon. Georgia M. Curio, A.J.S.C.

October 3, 2016
Page 10

Improvement

Auth., 349 N.]. Super. 290, 291 (App. Div 2002) (non-New Jersey company
s,

seeking records under RTKL).

"Specific language can be avoided in interpreting a statute in order to escape what the
Legislature might see as an inconceivable result from its intent."

State v. K-Mart, 134 N.J.

Super. 76, 86 (Co. 1975), affd, 141 N.J. Super. 546 (App. Div. 1976). Here, the Legislature
could not have intended a single use of the phrase "citizens of this State" in OPRA's opening
declaration to bar non-residents and both in-state and out-of-state media agencies and business
entities from filing OPRA requests. Instead, the Legislature made it repeatedly clear throughout
OPRA's operational provisions that "any person" has a right of access to government records. A
"statute must be construed as a whole and, if possible, full effect given to all its parts." Tagmire
v. Atl. City, 35 N.J. Super. 11, 19 (App. Div. 1955).

The better interpretation is the one that

comports with the State's public policy of transparency and the Legislature's intention to permit
media agencies and other "persons" to utilize the statute. In other words, granting access to "any
person" permits anyone or any company to gain access to government records, including the
"citizens of this State."
Accordingly, the Court should find that "any person" may utilize OPRA, just as all ten of
its operational provisions permit."
III.

THERE IS NO BASIS TO STAY THIS MATTER WHILE OTHER CASES ARE

ON APPEAL
Despite not formally filing a motion for a stay, Defendants essentially argue that the

Court should stay deciding this matter until the Appellate Division has decided the appeals in
Scheeler v. Cape May. This Court should reject that request.
Defendants have not cited a single legal authority that supports the proposition that a case

Hon. Georgia M. Curio, A.l.S.C.

October 3, 2016
Page 11

should be stayed simply because a similar issue will at some point be decided by the Appellate
Division.

Plaintiff can think of dozens of OPRA issues that are pending before the Appellate

Division, but that does not mean access to government records should come to a halt simply
because of those appeals. Such is especially true given that Plaintiff strongly feels that Judge
Johnson's decision will be reversed and that the courts will agree with Judge Bookbinder and
Judge Troncone.

Moreover, Plaintiff would prefer to have this Court decide this issue now.

Either party is free to appeal the Court's decision if it disagrees with the Court's ruling.

If

Plaintiff prevails and the Defendants believe they will suffer irreparable harm by complying with
the Court's Order while their appeal is pending. the Defendants are free to file a motion for a
stay of the Order pending appeal. Irreparable harm is unlikely, however, given that Defendants
have not even argued that the records are not subject to public access; indeed, they are
unequivocally subject to public access.
Respectfully Submitted,

CJGRIF