Let the Sun Shine

March 20, 2015
Share this:

ACLU-NJ Offers “Sunshine Week” Ideas for Strengthening OPRA and OPMA Laws, and for Holding Government and Elected Officials Accountable to the Public

In a remarkable bit of timing this week, the New Jersey state Senate failed in a vote to over-ride a veto by Governor Christie of legislation that would have imposed for the first time strict legal requirements for more transparent governance at the scandal-plagued Port Authority of New York and New Jersey.

What was so remarkable about the timing?

Republicans in the Senate went jelly-legged during Sunshine Week, a seven-day celebration of openness and transparency in government that began after the Florida Society of Newspaper Editors in 2002 beat back attempts by the Florida Legislature to create some 300 exemptions to its open meetings laws. Its name, however, comes from an idea voiced a century ago by U. S. Supreme Court Justice Louis Brandeis. In describing the need for public oversight of elected officials, Brandeis wrote, “Sunlight is said to be the best of disinfectants.” And the point is to draw public attention to the necessity of laws that require government officials and elected leaders to conduct business in full view of the public.

The PA veto over-ride in New Jersey failed even though the bill, sponsored by open government champions Sens. Bob Gordon and Loretta Weinberg, had previously won unanimous approval of both the Senate and the Assembly. The failure of the bill to win approval “means the port authority is still vulnerable to abuse and commuters remain at risk of schemes that take more of their hard-earned money out of their pockets,” Gordon said.

The response to the governor’s veto doesn’t necessarily mean everything is rotten in Trenton, but it does demonstrate quite clearly that not all elected officials put a premium on the need to be held publicly accountable for their actions.

As a bi-state agency, the PANYNJ is not subject to the governmental transparency laws of New Jersey or New York, even though it has a budget larger than many states. Indeed, it was only through dogged reporting, led by The Record of Bergen County, that the notorious “Time for some traffic problems in Fort Lee” email from a Christie aide to a PA official was discovered and launched the political scandal over the closure of traffic lanes onto the George Washington Bridge.

The PA is but one example of the need for greater transparency and accountability in government.

In recognition of Sunshine Week, the American Civil Liberties Union of New Jersey is offering up its own ideas for bringing New Jersey’s Open Public Records Act and Open Public Meetings Act into the 21st Century.

“Open government is a cornerstone of democracy that enables advocates, activists and the press to monitor government performance and expose corruption,” ACLU-NJ Transparency Law Fellow Iris Bromberg said. “The transparency of government activities enables access to critical information needed to shine a light on government performance and expose corruption."

In addition to the ideas for strengthening accountability – including adopting policies to ensure proper retention of government emails and texts that are made on private systems , creating websites where individuals can find publically-available information regarding their municipality, and strengthening the existing language of NJ’s transparency laws – the ACLU-NJ is highlighting five important government transparency cases that established the right to videotape public meetings, create privacy safeguards for automated license plate readers and closed loopholes in the existing open meetings and records law.

ACLU-NJ Disappointed in NJ Senate’s Failure to Secure Port Authority Transparency

March 16, 2015
Share this:

Bill passed unanimously but Senate could not muster the votes to override Christie’s veto, dashing hopes for accountability at Port Authority of New York and New Jersey

The ACLU-NJ expressed disappointment with the New Jersey State Senate today for failing to override Governor Chris Christie’s veto of a bill to transform the Port Authority of New York and New Jersey (PANYNJ) that passed the Senate unanimously.

The legislation, S2181, sponsored by Senators Robert Gordon and Loretta Weinberg, would have established critical independent transparency standards for the bi-state agency, whose failures of accountability garnered national attention in the wake of the 2013 George Washington Bridge lane closures.

New Jersey lawmakers voted on an override of the veto on March 16 but failed to secure enough votes, with 25 in favor and 14 voting against. In order for laws pertaining to the bi-state agency to be enforceable, New York and New Jersey must each enact parallel versions of the legislation. The New York legislature has already reintroduced its counterpart to S2181 following a veto from New York Governor Andrew Cuomo during that state’s 2014 legislative session.

“Time is long past for dragging the Port Authority out of its own muck and directing some disinfecting sunshine at it. History has shown that we cannot trust the Port Authority to police itself,” said ACLU-NJ Executive Director Udi Ofer. “The legislature unanimously supported bringing the Port Authority into the 21st Century by passing transparency and accountability measures. The Senate needed to show that same conviction now by overriding the governor’s veto, and it fell far short of what the people of New Jersey need. This nearly $8 billion agency impacts the daily lives of millions of New Jerseyans and we cannot afford to allow it to continue to avoid oversight. Today’s vote constitutes a sad day for transparency and accountability in New Jersey.”

As a bi-state agency, the PANYNJ is not subject to the governmental transparency laws of New Jersey or New York, despite operating with a budget that surpasses most states’. Among other accountability provisions, S2181 would take significant steps to addressing this loophole by applying important open public meetings rules to the Port Authority.

“S2181 would have been a critical first step for the Port Authority and we support override of the Governor’s veto,” said ACLU-NJ Transparency Law Fellow Iris Bromberg. “But the legislature today let the people of New Jersey down. We need accountability, both through S2181 and through follow-up legislation to ensure New Jerseyans can effectively enforce the open meetings requirements for the Port Authority in court. We will continue to push for accountability at the Port Authority.”

S2183, a companion bill supported by the ACLU-NJ and conditionally vetoed by Governor Christie in January, would subject the Port Authority to New Jersey’s Open Public Records Act and New York’s Freedom of Information Law.

The longstanding issue of transparency failures at the Port Authority drew widespread public attention in late 2013, when news of the Christie administration’s involvement in the closure of traffic lanes on the George Washing Bridge emerged. However, lawmakers and transparency advocates have attempted to shine a light on the workings of the Port Authority for years. In July 2012, Governor Christie conditionally vetoed legislation that would have given the public greater access to financial and procedural dealings at the Port Authority, among other reforms.

ACLU-NJ Sues NJ Department of Health for Denying OPRA Request on Ebola

March 3, 2015
Share this:

Lawsuit Would Compel DOH to Turn Over Records About the State's Quarantine Policies for Those Exposed to the Virus

The American Civil Liberties Union of New Jersey (ACLU-NJ) filed a lawsuit in Mercer County Superior Court challenging the New Jersey Department of Health’s refusal to provide public records regarding the development and implementation of state policies and protocols about exposure to the Ebola Virus Disease (EVD).

“The state of New Jersey must be transparent about the scientific information and health policy thinking used to formulate and implement these statewide rules,” ACLU-NJ Executive Director Udi Ofer said. “The public must be assured that these policy decisions are being guided by science, not fear.”

The ACLU-NJ made a request on Oct. 30 to the New Jersey Department of Health under the state’s Open Public Records Act for emails and other correspondence from specific officials in the Department of Health that contained several key words, including Ebola, EVD, quarantine, isolation or screening. It also sought correspondence with county departments of health.

The state requested several lengthy delays in responding to the request, including a final demand for a delay on Dec. 22, at which time the ACLU-NJ gave Jan. 15 as the absolute deadline for a response.

On Jan. 14, the records custodian for the Department denied the ACLU-NJ request alleging it was overly broad and required research and also suggesting that the records sought fell under OPRA exemptions for material that is advisory, consultative or deliberative.

“The department’s refusal is unjustified because the request was very specific,” said Ed Barocas, ACLU-NJ Legal Director. “Not only did it take them ten weeks to respond, but the department refused to conduct a simple search of its computer files.”

The lawsuit filed late Monday challenges the denial on several counts, especially the state’s contention that the request wasn’t specific enough and that a key word search of email is “research” that would require creation of a new government record.

The ACLU-NJ noted that OPRA does not permit a records custodian to issue a blanket rejection of all emails as falling within the deliberative material exemption to OPRA.

Finally, the ACLU-NJ argues that, given that the State considered the request itself invalid, it clearly engaged in delay after delay without justification, in violation of OPRA. Since it believed the request invalid, DOH should have issued a denial soon after receipt of the request, rather than making the ACLU-NJ wait two months for that rejection and making it appear that a search for records was occurring during that time.

The lawsuit asks the court to declare the state in violation of the Open Public Record Act, levy a fine and compel the defendants to immediately provide copies of the requested records.

The case is captioned ACLU of New Jersey v. Department of Health and is filed in Superior Court of New Jersey, Mercer County. Read the verified complaint and brief.

Related Content

Legislature Acts to Make Port Authority More Transparent, Accountable

November 13, 2014
Share this:
George Washington Bridge

The ACLU of New Jersey applauded the Legislature’s overwhelming approval of two key measures that will strengthen transparency and accountability within the Port Authority of New York and New Jersey, and urged Governor Christie to sign the bills that will move the PANYNJ’s work out of the shadows and into the sunlight.

New York lawmakers have already passed identical legislation, as is required for the bi-state agency.

The legislation (A3350/S2183 and A3417/S2181) would require the PANYNJ to abide by New Jersey’s Open Public Records Act (OPRA) and Open Public Meetings Act (OPMA), as well as New York’s Freedom of Information Law (FOIL).  The lack of transparency within the agency was highlighted last year during investigations of a three-day shut-down of local lanes at the George Washington Bridge, which became known as “Bridgegate” in newspaper headlines.

 “The lack of transparency at the PANYNJ has been a concern to New Jersey citizens well before the lane closure incident,” said ACLU-NJ Legal Director Ed Barocas, testifying in support of the bills. “The legislation represents positive steps toward addressing this significant and long-standing concern.”

“The only thing now that stands between the status quo and these new public accountability measures at the PANYNJ are the signatures of Governors Christie and Cuomo,” `said Ari Rosmarin, Public Policy Director at the ACLU-NJ

“However, the work to reform this troubled agency is not done,” Rosmarin added.  “The legislative changes will fall short of their aim without follow-up legislation that creates stronger  enforcement mechanisms. The ACLU-NJ looks forward to working with lawmakers in both parties to make sure that these reforms gain the teeth they need to be a genuine check on the agency.”

Related Content

Spooky Stuff at the ACLU-NJ

October 31, 2014
Share this:

This Halloween the staff at the ACLU of New Jersey share what spooks them when it comes to defending our civil liberties. The videos below will serve content from youtube.com. YouTube's privacy statment. ACLU-NJ's privacy statement.

When Drones Attack!

ACLU-NJ Public Policy Director Ari Rosmarin is afraid of unregulated drones in New Jersey's skies (and conference rooms).

The Loss of Privacy

ACLU-NJ Senior Staff Attorney Alexander Shalom is scared that the 4th Amendment will disappear (literally).

Freedom of Expression

ACLU-NJ Administrative Assistant Farah Rahaman is afraid of not being able to express herself.

Voting Rights

ACLU-NJ Transparency Law Fellow Iris Bromberg is frightened that voter suppression laws will take away her right to vote.

ACLU-NJ Seeks Governor’s Basis for Mandatory Ebola Quarantine

October 27, 2014
Share this:

Records requests filed with the Governor’s Office and NJ Department of Health Seeking Policies and Documents Used to Develop Ebola Protocols in NJ

The ACLU-NJ filed Open Public Records Act requests today with the Office of the Governor (PDF) and state Department of Health (PDF) seeking the details of policies pertaining to quarantine protocols for the Ebola virus.

The request follows Gov. Chris Christie’s announcement Friday of a mandatory quarantine policy and the recent detention of an American health care worker on her way home from West Africa. The request also stresses that the disturbing constitutional implications of quarantines for people exhibiting no symptoms -- as happened to Kaci Hickox, a nurse from Maine who was quarantined at Newark Liberty International Airport after working with Ebola patients in Sierra Leone -- compound the urgency of this request.

“Our government not only has a responsibility to keep the public safe, but also to keep the public informed,” said ACLU-NJ Executive Director Udi Ofer. “It is essential that the state of New Jersey be as clear and transparent as possible about the scientific information and health policy thinking that is being relied upon to formulate protocols and policies, especially when the public policy is as drastic as a 21-day quarantine. The public needs to be reassured that these policy decisions are being guided by science, not fear.”

Since the quarantine of Hickox on Friday, Oct. 24, the Governor’s policy, announced in tandem with New York Governor Andrew Cuomo at a news conference, has come under scrutiny, including from the ACLU. Governor Christie has said New Jersey will now detain all health care workers returning from West Africa who have cared for Ebola patients. The vague details surrounding the policies have made it imperative for the public to understand the specific regulations authorizing the governor to detain people.

“New Jerseyans have a right to know what decisions are being made and that the decisions are supported by sound medical judgment,” said ACLU-NJ Senior Staff Attorney Alexander Shalom. “Without a review of regulations, policies and protocols, it is impossible to know that what the government is doing is both medically necessary and no more restrictive than it needs to be.”

The OPRA request also asks that the matter be given priority.

“Given the tremendous public interest in these issues, I ask that you prioritize this request and provide the documents as soon as possible,” the ACLU-NJ’s request said. The Open Public Records Act mandates that a state agency must provide a response within seven business days.

Kaci Hickox to be Released from Detention but Serious Constitutional Concerns Remain with Mandatory Quarantine Policy

October 27, 2014
Share this:

Upon news of the impending release of health care worker Kaci Hickox from mandatory quarantine in New Jersey, ACLU of New Jersey executive director Udi Ofer issues the following statement.

Udi Ofer

"Kaci Hickox will see freedom after being coercively detained for three days, but New Jersey’s overbroad policy of automatically detaining all healthcare workers returning from West Africa after helping Ebola patients continues. Ebola is a serious matter and the government’s response should be driven by science and facts, not by fear and politics.

'Medical workers have put their lives at risk treating Ebola patients. They should be rewarded with compassion and not treated like criminals. Mandatory quarantine of people exhibiting no Ebola symptoms and when not medically necessary is overbroad and raises serious constitutional concerns. Governor Christie should rescind the mandatory quarantine policy, which could affect potentially hundreds of returning healthcare workers.

'New Jersey’s policy not only raises constitutional problems, but also discourages first responders from helping sick patients who need their assistance."

ACLU of New Jersey Statement on Governor Christie's Mandatory Quarantine Order

October 27, 2014
Share this:

The following statement is from Udi Ofer, executive director of the ACLU of New Jersey.

Udi Ofer

Ebola is a public health issue and the government’s response should be driven by science and facts and not by fear. We must treat our medical workers who put their lives at risk, and are the only ones who can contain this epidemic, with compassion and not like criminals. Coercive measures like mandatory quarantine of people exhibiting no symptoms of Ebola and when not medically necessary raise serious constitutional concerns about the state abusing its powers.

By forcibly detaining people we are also frightening the public and may deter genuinely sick people who fear quarantine from seeking the treatments they deserve, while also discouraging caregivers and first responders from helping sick patients who need their assistance.

This is a challenging time for New Jersey, but decisions must be made based on sound medicine, and not on fear. Governor Christie must provide more information to the public about how the state came to the conclusion that mandatory quarantine of our healthcare workers was medically necessary.

ACLU-NJ Supports Bill to Increase Port Authority Transparency as Key First Step

September 18, 2014
Share this:

S2181 would apply aspects of Open Public Meetings Act to Port Authority, but needs enforcement mechanism

NEWARK – The ACLU-NJ submitted testimony supporting legislation to bring transparency to the Port Authority of New York and New Jersey (PANYNJ), which the Senate State Government Committee will be considering today. The ACLU-NJ welcomed the measure as a promising first step toward openness at the Port Authority, giving praise to the sponsors in the Senate of S2181, Senator Robert Gordon and Senate Majority Leader Loretta Weinberg, and the sponsor of A3417, Assemblywoman Valerie Vainieri Huttle.

The ACLU-NJ cautioned, however, that the legislation, S2181, will fall short of its aims without follow-up legislation creating enforcement mechanisms that hold the PANYNJ accountable for operating transparently.

“Any measure of openness at the Port Authority is a step in the right direction, and this bill in particular is necessary for future reforms,” said ACLU-NJ Legal Director Edward Barocas. “We commend the bill’s sponsors for pushing New Jersey to pass a bill parallel to New York’s, the only route to instituting transparency. But companion legislation creating enforcement mechanisms, which are absent from this bill, is needed. Otherwise the Port Authority will have little incentive from carrying on as it has in the past: in the dark. This legislation is an important start, but it’s only part of what the people of New Jersey and New York need for the Port Authority to operate with accountability.”

The Port Authority of New York and New Jersey is not subject to the Open Public Records Act or Open Public Meetings Act (OPMA), New Jersey’s two main government transparency laws. The legislation being considered before the Senate State Government Committee, S2181, applies the general principles of OPMA to the PANYNJ. However, while OPMA contains provisions that allow for legal action if a public body violates the terms of the law, S2181 does not contain similar enforcement provisions.

Without state legislation, multistate agencies such as the PANYNJ determine their own levels of openness. For state governments to pass such regulations of multistate agencies, each state must enact parallel legislation that calls for the same kinds of joint oversight. New York’s version of S2181 has already passed both houses of the legislature.

The longstanding issue of transparency at the PANYNJ came to a fore in late 2013, when the Bridgegate scandal involving closure of traffic lanes on the George Washington Bridge first broke. However, advocates have been trying to pass legislation requiring transparency from the PANYNJ for years. In July 2012, New Jersey Gov. Chris Christie conditionally vetoed legislation that would have given the public greater access to financial and procedural dealings at the Port Authority.

Another bill in the legislature, S2183, would apply the general principles of the Open Public Records Act to the PANYNJ in a similar manner to S2181’s application of the Open Public Meetings Act.

Court Gives Public Access to Footage of Man Who Died in Monmouth Jail

September 2, 2014
Share this:

The ACLU-NJ saw a victory for transparency in a federal court decision issued last week (PDF) that rejected Monmouth County’s rationale for trying to seal a video recording of a man who died after being restrained at Monmouth County Correctional Institution. The United States District Court for the District of New Jersey sided with the position the ACLU-NJ put forth in an amicus brief for the case, Bornstein v. County of Monmouth.

“The court was correct to recognize that when a person dies while in the care of a public agency, the public deserves an explanation, not secrecy,” said ACLU-NJ Deputy Legal Director Jeanne LoCicero, who wrote the ACLU-NJ’s amicus brief (PDF) in the case. “The public’s interest in understanding the circumstances surrounding a person’s death in county custody far outweighs what the court identified as vague speculation about the potential harms that could come from releasing the footage.”

In July 2010, Amit Bornstein died in Monmouth County Jail after having been booked for failure to appear in court. In the course of a wrongful death lawsuit following his death, Monmouth County sought to seal the previously publicly available security camera footage from the incident only after a third party tried to obtain copies. The footage showed the jail’s booking area and constant-watch area. In his ruling, U.S. Magistrate Judge Douglas E. Arpert pointed out the insufficiency of Monmouth County’s arguments that releasing the tape would jeopardize public safety generally, especially in contrast to the many arguments in favor of leaning toward public disclosure.

“Here, defendants have failed to identify the particularized harm that would result from the public disclosure of the security footage,” said Judge Arpert’s Aug. 27 opinion, which also mentioned less restrictive alternatives Monmouth County could have sought to sealing the entire tape.