May 10, 2010

Newark - In a victory for transparency, the Appellate Division of the New Jersey Superior Court ruled today that government documents maintained by outside agents must be made available to the public.

"No matter where a government agency chooses to keep its records, the public will now have access to them," said ACLU-NJ Open Governance Staff Attorney Bobby Conner, who argued the case for the ACLU-NJ before the court in January. "If today's decision hadn't closed the lower court's loophole, all government agencies in New Jersey could have evaded the law simply by maintaining their records with outside sources."

The court upheld the ACLU-NJ's arguments that Gloucester County had broken the Open Public Records Act (OPRA) when it denied David Burnett access to settlement agreements he had requested. The county's explanation - that the records were not "made, maintained or kept on file by the county" - did not hold true, as the county had entered into the requested settlement agreements through agents acting on its behalf, in the form of insurance carriers or outside legal counsel.

As the ACLU-NJ argued in its September 2009 friend of the court brief, and as the court today upheld, OPRA applies equally to both government records maintained by outside agents and government records stored among the entity's in-house files. The court also held that Burnett's request for every settlement agreement within a specified time frame did not require inappropriate research, rejecting the county's assertion.

"This decision is a double win for open government," Conner added. "First, the court recognized that citizens have a right to see records of their government's activity - no matter who stores them. The ruling also prevents towns from treating requests for a range of identifiable documents as if they were impermissible fishing expeditions."

The ACLU-NJ's Open Governance Project, founded in spring 2009, works to increase the access of the public and the press to the workings of their government. The project saw another recent victory as a friend of the court in O'Shea v. West Milford, which determined that police departments' use-of-force reports are public records.