State Agrees to Release Salt Barn Records to ACLU-NJ

January 12, 2011

NEWARK, N.J. — The American Civil Liberties Union of New Jersey’s (ACLU-NJ) Open Governance Project has won access to the building and site plans of a road salt storage barn in Bethlehem Township, Hunterdon County. The ACLU-NJ’s Open Governance Project sued the New Jersey Department of Community Affairs (DCA) after it denied a resident access to the plans.

In a settlement with the state (294k PDF), the DCA has agreed to release the plans, which were submitted to its Office of Local Code Enforcement in Hunterdon County. In addition to releasing the documents, the state will pay for the ACLU-NJ’s attorney fees.

“We are pleased that the state has come to recognize that the release of these records do not compromise public safety,” said ACLU-NJ Open Governance Project Attorney Bobby Conner. “We are also pleased that the state worked with us to resolve this matter expeditiously. In the future, though we hope government entities will be more cautious before using this as a justification to unlawfully deny access to public records.”

The state had invoked an executive order that allows state agencies to deny requests for public records that could increase the risk of terrorism or heighten the impact of an attack. The barn at issue in this matter stores road salt and has plastic windows and one door. It was built by Bethlehem Township in 2007 with taxpayer dollars.

Carole Chiffarano, the resident who requested the records last fall, said she is glad she will have an opportunity to review the records.

“I’m very happy with the outcome, but I don’t think residents should have to leap through hurdles in order to get public documents,” said Chiffarano. ”I am thankful that the ACLU-NJ was here to help, but there are many residents who don’t have the ability or resources to challenge the state when it tries to keep the public in the dark. I hate to think of the taxpayer resources they spent fighting this.”

Chiaffarano had already received the building and site plans from Bethlehem Township, but she had reason to believe that the construction of the salt barn differed from the plans that Bethlehem submitted to the DCA and other state agencies for their approvals. Chiaffarano was concerned about whether the barn was constructed safely.

Chiaffarano, whose property is 38 feet away from the barn, hoped to compare the municipal documents with the DCA’s. She first requested plans in September 2010, but was denied access under both New Jersey’s Open Public Records Act (OPRA) and her common law rights to obtain public records. In addition to written requests, she called the DCA on November 1, 2010 to schedule an office visit to review the plans. She was told that such a review is “prohibited by state law” and that only the engineer or the "owner of the plans” could access records. As part of the settlement that has now been reached, the requested records were released to Chiaffarano pursuant to her common law rights of access.

The ACLU-NJ’s Open Governance Project, founded in 2009 through a grant from the Pratt Bequest Fund of Rutgers School of Law-Newark, is dedicated to ensuring that government agencies uphold and enforce OPRA and New Jersey’s Sunshine law.

ACLU-NJ Sues State for Withholding Salt Barn Plans

December 06, 2010

NEWARK — The American Civil Liberties Union of New Jersey's (ACLU-NJ) Open Governance Project sued the New Jersey Department of Community Affairs (DCA) Office of Local Code Enforcement today for denying access to plans concerning a road salt storage barn in Bethlehem Township, Hunterdon County. The barn, which stores road salt, was built in 2007 using taxpayer dollars.

Although Carole Chiaffarano, the resident who requested the documents, has already received the building and site plans from Bethlehem Township, she had reason to believe that the construction of the salt barns differed from the plans the township submitted to the DCA and other state agencies for their approval.

Chiaffarano, whose property is 38 feet away from the barn, hoped to compare the municipal documents with the DCA's, but her request was denied. The DCA cited an executive order that allows state agencies to reject requests for public records that could raise the likelihood of terrorism or heighten the impact of an attack.

"I was shocked that my requests were denied because of security reasons," stated Chiaffarano, the plaintiff in the case. "The state's actions leave the Bethlehem community in the dark about whether the barn was built safely and correctly. Since the township's plans are out in the open already, I don't see how comparing two sets of documents poses a risk to anyone."

Chiaffarano, a resident of Bethlehem Township, first requested plans from the DCA in September 2010 hoping to uncover whether the township submitted different versions of the building and site plans for the approval of the DCA and other agencies. In addition to written requests, she called the DCA on Nov. 1 to schedule an office visit to review the plans. She was told that such a review is "prohibited by state law" and that "only the engineer or the owner of the plans" could access records. The agency also denied her requests for the information under the common-law rights that also grant access to public records for New Jersey citizens. Chiaffarano fears that the plans used in the actual construction of the salt barns were not approved by one or more of the appropriate governmental agencies.

"It borders on absurdity that the DCA believes access to records about a barn with plastic windows and one door could put the public at risk," said ACLU-NJ Open Governance Attorney Bobby Conner. "This is an example of a state agency using a ludicrous justification to withhold information from the public."

The ACLU-NJ's Open Governance Project, founded in 2009 through a grant from the Pratt Bequest Fund of Rutgers School of Law-Newark, is dedicated to ensuring that government agencies uphold and enforce the Open Public Records Act and Open Public Meetings Act throughout New Jersey.

The case, captioned Carole Chiaffarano v. DCA, is pending in the Superior Court of New Jersey in Hunterdon County.

Related Content

• Chiaffarano - Complaint

N.J. Supreme Court Lowers Copy Costs

October 20, 2010

NEWARK — The American Civil Liberties Union of New Jersey applauded the New Jersey Supreme Court this week for lowering the cost of court records to make it consistent with the new rates imposed under the Open Public Records Act (OPRA). "The ACLU-NJ wrote to the Supreme Court" (143k PDF) last month seeking to confirm that it would lower its copying costs to correspond to the OPRA standard, as has been its practice.

Last month, Governor Christie signed into law a bill significantly reducing the rates for paper copies of public records accessed through OPRA to five cents per page for letter-size copies and seven cents per page for legal-size copies. The lowering of copy costs was long-sought by open government advocates, including the ACLU-NJ and New Jersey Foundation for Open Government (NJ FOG), whose members encountered exhorbitant fees for copies as a barrier to transparency.

"The Supreme Court's changes to its fee schedule not only provide consistency in fees for public records in the State, but also enable greater access to court records and information," said Bobby Conner, staff attorney for the ACLU-NJ Open Governance Project.

The court's previous fee schedule for records - 75 cents per page for the first 10 pages, 50 cents per page for the next 10 pages, and 25 cents per page for additional pages - corresponded to the now-obsolete fees articulated in OPRA prior to the passage of the recent amendments.

The ACLU has long recognized that an open and transparent government is a founding value of American democracy. The ACLU-NJ's Open Governance Project, the only full-time public interest legal program in the state dedicated solely to open governance matters, works closely with the New Jersey Legislature and county and local government agencies to promote greater access to public meetings and records.

"The new rates correspond to the actual costs of providing the court records," Conner added. "The Court has clearly sent a message that public access to government is a right, not a privilege to those who can afford it."

Affordable Fees for Copies of Records Signed Into Law

September 10, 2010

Governor signs long-fought-for bill into law for a more transparent NJ

NEWARK — In an important victory for open government, Governor Chris Christie today signed into law a bill lowering fees charged by state and local government for copies of public records, championed by Assemblyman Joseph Cryan and Senator Loretta Weinberg and backed the ACLU-NJ and open government advocates across the state.

"This marks the end of a barrier that for far too long kept the public from having access to government," said ACLU-NJ Open Governance Project Attorney Bobby Conner. "This new law brings a new day for transparency in New Jersey. Now public records will be more available to everyone, not just those who can afford it. It will help New Jersey's citizens to better hold their officials accountable."

The law limits what government agencies can charge for copies of public records to five cents per page for letter-size copies and seven cents per page for legal-size copies, based on actual costs of copying. Previously, New Jersey's Open Public Records Act had allowed state and local government to charge 75 cents per page, often prohibitive for ordinary citizens holding their officials accountable. In February, however, the Appellate Division of New Jersey Superior Court ruled that as of July 1, no agency could charge citizens more than the actual costs of copying records.

The ACLU-NJ, which contributed to the drafting of the legislation, has advocated for more reasonable copying fees for more than a decade. Expanding on the fundamental ACLU-NJ mission to bring greater transparency to the state, the organization last year formed the Open Governance Project, thanks to a generous grant from Rutgers School of Law-Newark.

The Open Governance Project is currently working with legislators to draft more comprehensive updates to OPRA and the Sunshine Law (Open Public Meetings Act), which hasn't been updated since first passing in 1975 and needs revisions that address electronic communications.

"We're gratified that a very long battle in the fight for accountability has secured greater access for the public," said ACLU-NJ Executive Director Deborah Jacobs. "There's still a long way to go before accountability weaves its way into all levels of New Jersey's government, but this is a fundamental step. The ACLU-NJ will remain a watchdog against government secrecy to let the public keep watch over their government."

The Open Governance Project, which claims the only pro bono attorney in New Jersey working exclusively on transparency issues, has won other recent victories to secure more openness among New Jersey's officials, which can be found online.

ACLU-NJ Input Adds Transparency to Newark Charter School

September 01, 2010

Newark — The American Civil Liberties Union of New Jersey (ACLU-NJ) announced the successful resolution of requests to review Lady Liberty Academy Charter School's (LLACS) public records and to videotape LLACS board meetings. After an anonymous community member contacted the ACLU-NJ to help her seek the school's records, the ACLU-NJ worked with LLACS to improve the charter school's practices for sharing information with the public.

As part of the resolution, Lady Liberty has adopted ACLU-NJ recommendations for greater transparency.

"We are proud that Lady Liberty has renewed its commitment to open government," stated ACLU-NJ Open Governance Attorney Bobby Conner, who assisted in the resolution. "This resolution helps the entire community by making sure that the most important information to the public is easily accessible."

Also as part of the resolution, the school will maintain its meeting agendas, minutes and other vital public records online in addition to posting specific details about the public's right to participate in meetings. Additionally, the anonymous requester has received hundreds of pages of documents sought from the school.

Lady Liberty Academy Charter School, established in 2001, fosters student achievement by providing Newark schoolchildren with a rigorous academic and social curriculum.

The ACLU-NJ's Open Governance Project, founded in spring 2009, works to increase the public's access to the workings of their government.

ACLU-NJ Probes FBI Mapping Based on Ethnicity

July 27, 2010

NEWARK - The American Civil Liberties Union of New Jersey today filed a Freedom of Information Act request with New Jersey's FBI field offices asking for records regarding the agency's collection of racial and ethnic data in local communities. Joining 31 other ACLU affiliates nationally, the ACLU-NJ seeks more details concerning the FBI's authority as described in the 2008 FBI operations guide to map businesses, behaviors, lifestyles and traditions considered "ethnic-oriented."

"The potential abuse that could stem from the FBI's mapping of America by race demonstrates exactly why transparency is so crucial to a democracy," said ACLU-NJ Executive Director Deborah Jacobs. "The public has a right to know what kinds of information the government gathers about ordinary Americans, and the public has a right to know how that information will be used."

The FBI's 2008 Domestic Intelligence and Operations Guide (DIOG) refers to agents' power to collect, use, and map racial and ethnic data to assist its "domain awareness" and "intelligence analysis" activities. The DIOG, first released with heavy redaction in September 2009, was released with fewer redactions this January in response to a lawsuit filed by Muslim Advocates. Still, the public has little access to information about the FBI's implementation of this authority.

"The FBI's mapping of local communities based on race and ethnicity, as well the ability to target investigations based on supposed racial and ethnic behaviors, raises serious civil liberties concerns," said Michael German, ACLU policy counsel and former FBI agent. "Creating a profile of a neighborhood based on the ethnic makeup of the people who live there for law enforcement or domestic intelligence is unfair, un-American and unable to stop crime."

In addition to New Jersey, FOIA requests for the same kinds of information were also filed in Alabama, Arkansas, California, Colorado, Connecticut, Washington, DC, Delaware, Florida, Georgia, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont and Virginia.

Related Documents

• The DIOG provisions in question are available online at:
  http://www.muslimadvocates.org/DIOGs_Chapter4.pdf

• The entire DIOG is at:
  http://www.muslimadvocates.org/latest/profiling_update/community_alert_seek_legal_adv.html

ACLU-NJ Celebrates 50 Years on the Front Lines of Freedom

June 16, 2010

Newark, N.J. - For five decades, the American Civil Liberties Union of New Jersey has been a gale force in the most critical social debates of our time and a vigilant guardian of civil rights for all.

In June, the ACLU-NJ will mark the 50th anniversary of its founding and celebrate its standing as one of the largest and most active affiliates in the nation. Created to counter the growing pressures on civil liberties in the state, the affiliate's first official meeting took place on the night of June 16, 1960. Since its start, the affiliate, which has continued to keep its headquarters in Newark, has seen its membership multiply nearly 10-fold, from 1,600 people to more than 15,000.

ACLU Sues Over Closed Meeting on Open Spaces

May 20, 2010

Newark — The American Civil Liberties Union of New Jersey's Open Governance Project today announced the filing of a lawsuit challenging the actions of the West Orange Open Space and Recreation Committee, which excluded members of the public from its March meeting. The ACLU-NJ today filed notice with the court that the complaint had been served on West Orange and the committee.

"The Open Spaces Committee plays a substantive role in shaping open space projects in West Orange, but the committee sought to keep the public in the dark," said ACLU-NJ Open Governance Attorney Bobby Conner. "West Orange residents showed up to the public meeting and the doors were literally shut in front of them."

The plaintiff, Frances Chasan Holland, had hoped to attend the Open Space Committee's March 8 meeting, seeing it advertised in the local paper and town newsletter. But when Holland arrived, the committee members in attendance falsely told her that they lacked the requisite quorum for a public meeting. In violation of the Open Public Meetings Act (OPMA), they shut the doors and went into closed session, reportedly drafting an ordinance regarding the development of steep slopes.

"A township official who serves on the committee told me to wait in the hall, and said they would all wave to me on the way out," Holland said. "They then held their meeting behind closed doors, away from the community members their decisions affect."

When Holland requested information about the meeting, West Orange claimed that the committee lacked influence over the rights of residents and OPMA didn't apply. However, as a voting body the committee holds significant sway over residents' rights. It identifies, prioritizes and recommends properties for West Orange to acquire for open space projects, which qualifies it as public under OPMA. Further, the West Orange municipal code mandates the Open Space Committee follow OPMA.

"The committee chooses which land should be considered for development, and that gives it a tremendous amount of power," said Conner. "The public has a right to know the basis for decisions that determine the future of their town."

The case, captioned Holland v. Township of West Orange, was filed Wednesday, April 21, 2010, in Superior Court in Essex County. The ACLU-NJ also filed complaints regarding the matter with the New Jersey Attorney General and the Essex County Prosecutor, which are still pending.

ACLU Open Governance Attorney Honored with Award

May 20, 2010

Newark — ACLU-NJ Open Governance Attorney Bobby Conner, who has spearheaded the organization's Open Governance Project since its launch last year, will receive the 2010 Professional Achievement Award of the New Jersey State Bar Association (NJSBA) Young Lawyers Division in recognition of his contributions to the state's legal landscape.

"In just four years out of law school, Conner has not only become a leading advocate in the field of open government, but has also shined professionally as a creative colleague who holds himself to the highest standards," said ACLU-NJ Deputy Legal Director Jeanne LoCicero, who nominated Conner for the award. "Whether he's shedding light on public contracts in a town of 500 or helping rewrite laws that affect the entire state, the passion behind his work is just as strong. He's driven by the knowledge that every piece of his advocacy adds up to greater accountability."

Conner's award, to be presented at the New Jersey State Bar Association's annual meeting in Atlantic City today, each year recognizes a young lawyer in the state who has demonstrated excellence in a particular area of law, argued for a significant verdict, or won a game-changing decision, among other distinctions.

Conner has established the Open Governance Project as a powerhouse for transparency, ensuring that government agencies uphold and enforce the Open Public Records Act and Open Public Meetings Act (the "Sunshine Law") throughout New Jersey. He regularly helps members of the public seeking access to their government and teaches public officials how to better comply with New Jersey's open governance laws. He has worked closely with Senator Loretta Weinberg to draft amendments she has introduced to update both the Sunshine Law and the Open Public Records Act.

Conner's contributions to the growing body of public records decisional law are evident. Conner successfully argued that police use-of-force reports are not exempt from public access, persuaded the Union County freeholders to publicly apologize to a resident they had silenced because they disagreed with his comments, and ensured that emergency medical service invoices hidden by the Hackensack government saw the light of day. In addition, Conner's friend-of-the-court brief in Burnett v. Gloucester, decided just last week, helped ensure that public documents maintained by a third party cannot be shielded from the public. The Appellate Division adopted the ACLU-NJ's position, also ruling that towns are prohibited from treating requests for a range of identifiable documents as impermissible fishing expeditions based solely on their breadth.

"In a state with more than 1,800 government entities — from cities to school boards to public authorities — New Jersey presents an especially difficult challenge for residents looking for transparency in the democratic process," Conner said. "When we fight for open government in one jurisdiction, we send a message to every official in New Jersey: if you obstruct the public from access to records or meetings, you will hear from the ACLU."

When Conner first came to the ACLU-NJ full time in 2007, he managed the organization's legal intake and quickly became the resident expert on pursuing public documents. In 2009, a generous grant from Rutgers School of Law-Newark allowed the ACLU-NJ to more doggedly pursue open government, and, as a natural fit for the position, Conner stepped into the role of open governance attorney for the new Open Governance Project. He graduated from Rutgers School of Law-Newark in 2006, where he served as a government fellow at the Eagleton Institute of Politics at Rutgers University.

"Dynamic young lawyers like this year's honorees are the future of this profession," said New Jersey State Bar Association President Allen A. Etish.

Government Records Stored Off-Site Still Public, Court Rules

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.