June 28, 2012
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State has yet to turn over documents to Newark education group even after DOE’s seven requests for deadline extensions

NEWARK – The American Civil Liberties Union of New Jersey (ACLU-NJ) has filed suit against the state Department of Education (DOE) for twice failing to comply with the state’s Open Public Records Act (OPRA). The Education Law Center, the plaintiff in the lawsuit, filed two requests for records detailing the DOE’s relationships with two private foundations that fund public education initiatives and other philanthropic endeavors: the Eli and Edythe Broad Foundation and the Laura and John Arnold Foundation.

The DOE failed to turn over any information in response to one request, dated March 27, and it unlawfully denied a second request filed on May 17.

“Unfortunately this is not the first time that the DOE has failed to adhere to the state’s open records law,” said David Sciarra, executive director of ELC. “It is disturbing that the DOE wants to keep the public in the dark when it comes to making decisions and forming partnerships that involve our children’s education.”

ELC requested emails between DOE officials after learning that the DOE may have received private funding to pay for public programs and two foundation fellows to work at the DOE.

The first OPRA request, made March 27, sought emails between the two foundations and top DOE officials, including Acting Commissioner Christopher Cerf and Deputy Commissioner Andrew Smarick. On April 5, the records custodian for the DOE notified the ELC that it wanted an extension but did not specify the reason. State law requires that open records requests be fulfilled as soon as possible, but no later than seven business days after receiving the request. The custodian notified the ELC six subsequent times that it wanted additional extensions, each time without offering any explanation for continuing delays that had spanned nearly two months. The final notification, sent on May 17, expressed the need for another extension until May 24.

To date, the DOE has failed to provide any documents responsive to that request.

The ELC filed an additional OPRA request on May 17 seeking any contracts or agreements between the DOE and the Broad Foundation concerning two individuals who are employed by the DOE and are considered participants in a “Broad Residency” program. In addition, the May 17 OPRA request sought emails among the two employees, top DOE officials and Broad representatives.

The DOE supplied some documents, including a letter from Broad to Cerf, following the May 17 request, but denied access to the requested emails because the ELC did not identify their content or subject matter.

“OPRA does not require the ELC or anyone else to specify the content of government emails they have requested, as long as the emails are otherwise identifiable public records,” said Thomas MacLeod, the Open Governance Project legal fellow for the ACLU-NJ. “If such a requirement existed, it would undermine transparency in government by unnecessarily and improperly narrowing the scope of many valid OPRA requests.”

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