Scheeler v. Atl. Cnty. Mun. Joint Ins. Fund, 454 N.J. Super. 621 (App. Div. 2018)

5.15.18

Harry Scheeler was born and raised in South Jersey. As a journalist and photojournalist, Scheeler became very civically engaged and became widely known as a local “OPRA guru.” In 2014, Scheeler relocated to North Carolina. From a distance, Scheeler continued filing OPRA requests and responding to inquiries from members of the public who needed his help in figuring out how to file their own requests.

“Even though I moved away, I did not want to see public agencies suddenly growing less transparent because I stopped filing OPRA requests or helping others file OPRA requests,” said Scheeler.

Scheeler’s transparency work came to a screeching halt in mid-2015, when public agencies began trying to block his OPRA requests because he no longer resided in New Jersey. These agencies relied upon the opening provision of OPRA, which states that “government records shall be readily accessible for inspection, copying, or examination by the citizens of this State.” N.J.S.A. 47:1A-1.

The Trial Court Rulings

Pashman Stein Walder Hayden represented Scheeler in two trial court cases, with mixed results.

In Scheeler v. Atlantic County Municipal Joint Insurance Fund (ACMJIF), a Burlington County Superior Court judge ruled that “any person” could file OPRA requests, not just “citizens of New Jersey.” Thus, the court concluded that ACMJIF had violated OPRA by denying Scheeler’s OPRA request.

In Scheeler v. City of Cape May, an Atlantic County Superior Court judge came to the opposite conclusion. That judge ruled that only New Jersey citizens could file OPRA requests and that Scheeler thus lacked standing to sue when Cape May denied his OPRA request.

Our Litigation Strategy

Both trial court opinions were appealed. In the interim, other public agencies learned of the Cape May decision and began denying OPRA requests by nonresidents. Pashman Stein Walder Hayden attorney CJ Griffin made a strategic decision to continue litigating the citizenship issue in the trial courts while the appeals were pending.

“I strongly believed that we would ultimately prevail,” said Griffin. “I believed it was important to take every citizenship case and argue it to a successful result, which I could submit to the Appellate Division as an example of yet another trial court judge who had ruled in our favor.”

Ultimately, Griffin did convince several judges that OPRA contained no citizenship requirement.

When Peter Heimlich, a journalist from Georgia, approached Griffin and said that his OPRA request was denied because he did not reside in New Jersey, Griffin convinced a Gloucester County Superior Court judge that the denial was unlawful and that it served as an example of just how dangerous a citizenship requirement would be, since it would prohibit any journalist who did not live in New Jersey from filing OPRA requests.

“It was unfathomable to me that I could not obtain records from New Jersey given that my reporting was going to benefit New Jersey citizens,” said Heimlich.

Public agencies began taking the Cape May decision to extremes. In Jeff Carter v. Borough of Paramus, the requestor was a lifelong citizen of New Jersey, but Paramus denied his OPRA request because he refused to provide his home address to “prove” he was a resident. Griffin convinced the Bergen County Superior Court judge that OPRA contained no citizenship requirement and thus submission of the requestor’s address was an unnecessary hurdle that the agency was imposing to dissuade access to public records.

In the end, Griffin was able to show the Appellate Division that judges from Bergen, Burlington, Ocean, and Gloucester counties had all concluded that OPRA contains no citizenship requirement and that the Atlantic County decision was an outlier.

Our Appellate Win

The Appellate Division issued a published opinion titled Scheeler v. Atl. Cnty. Mun. Joint Ins. Fund, 454 N.J. Super. 621 (App. Div. 2018). The court ruled in Scheeler’s favor, finding that the word “citizen” was not a restrictive term but rather more logically should be construed to mean “an individual” or a “person.” Indeed, the court noted that every other operational provision of OPRA plainly stated that “any person” could file OPRA requests or challenge denials of access.

More than 20 amici curiae participated in the appeal, including the Reporters Committee for the Freedom of the Press, the New Jersey State League of Municipalities, the Municipal Clerks Association of New Jersey, the Coalition for Sensible Public Records Access, and the National Association of Professional Background Screeners.

“Harry was the warrior who fought this battle with us, but it had much larger implications,” said Griffin. “Had we lost, out-of-state reporters would have been banned from obtaining public records from New Jersey. Given how often New Jersey has been in the national news—from Bridgegate to Chris Christie’s presidential run to President Trump golfing in Bedminster—that would have simply been detrimental to transparency.”

Because the Appellate Division decision was published, it is precedential and binding upon trial courts. Thus, there is little fear that any agency in the future will try to deprive an out-of-state requestor the right to file an OPRA request.

Pashman Stein Walder Hayden collected a legal fee for this case.

Press Coverage

Appellate Court: OPRA Not Limited to Jersey Citizens | Cape May County Herald | May 27, 2018

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