ACLU-NJ appeals for AC education records denied based on residency

March 11, 2016

Lawyers’ Committee, represented by ACLU-NJ, appeals in case to secure access to records requested by out-of-state organization

NEWARK - Arguing that everyone should have access to public information under the state’s Open Public Records Act regardless of whether they live in New Jersey, the ACLU of New Jersey filed an appeal on behalf of the Lawyers’ Committee for Civil Rights Under the Law for access to Atlantic City’s school records, which the city had originally denied because the Lawyers’ Committee’s offices are not located in New Jersey.

The ACLU-NJ argued that the Legislature clearly meant for residents and non-residents alike to have access to public records. However, Atlantic County Superior Court Judge Nelson Johnson ruled on Feb. 19 that only New Jersey residents can have access to records in the state, contrary to OPRA according to the ACLU-NJ.

“OPRA was created to serve the people of New Jersey by giving anyone with an interest in the state the right to access public records, not by limiting who can view those records,” said ACLU-NJ Transparency Law Fellow Iris Bromberg. “Granting access to public information for out-of-state requestors, whether they’re potential homebuyers, journalists, or civil rights advocates, doesn’t just create more access — it builds a culture of transparency and accountability.”

The Lawyers’ Committee requested specific records documenting enrollment and disciplinary statistics in Atlantic City public schools, records that the city is required to maintain and send to the U.S. Board of Education. In fact, the Lawyers’ Committee found an Atlantic City board document online that had been provided to the federal government. The Atlantic City board then claimed it had lost all such records, which proved to be untrue. The Lawyers’ Committee also requested disciplinary policies and procedures of the Atlantic City Board of Education, including when to involve law enforcement.

“We see these records as similar to an educational canary in the coal mine for New Jersey families,” said Brenda Shum director of Lawyers’ Committee’s Educational Opportunities Project, which defends the rights of school children to receive a quality education. “The Lawyers’ Committee happens to be initiating the search, but everything we’re asking for will ultimately benefit residents of New Jersey above all. These kinds of documents reveal patterns about whether students in New Jersey are getting the education they’re entitled to, and if they aren’t, it signals to organizations like ours that these students need advocates to fight for their rights under the state Constitution.”

When the Lawyers’ Committee requested education records in 2015 from the Atlantic City Board of Education about its two high schools, the board refused, claiming in violation of OPRA that the group’s out-of-state Washington, D.C., mailing address precluded them from obtaining that information. The Atlantic City board also refused to fill the request based on the claim that it did not have any records responsive to the Lawyers’ Committee’s request.

As the ACLU-NJ explained to the trial court, OPRA consistently and clearly grants the right of access to “any person” requesting information. Crucially, only the preamble of OPRA mentions “citizens of the state,” which appears to be a holdover from the Right to Know Law, an earlier, now-defunct predecessor to OPRA. When the New Jersey Legislature repealed and replaced the state’s previous law with OPRA, it affirmatively replaced the term “citizen” with the term “any person” in the new law’s main sections. The fact that OPRA allows for anonymous requests, in which the address of the requestor is unknown, indicates that New Jersey residency is not required for access to records.

“The language of the statute is consistent and clear: it states that ‘any person’ may access records under the Open Public Records Act,” said ACLU-NJ Legal Director Edward Barocas. “Given that state agencies have long treated out-of-state requestors as they would in-state requestors, and given OPRA’s clarity on allowing anonymous requests for records, there is no question that our Legislature intended for everyone, including representatives from out-of-state groups like Lawyers’ Committee, to have the right to access public information.”

The case is captioned Lawyers’ Committee v. Atlantic City Board of Education.

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