Appeals court says Glouco cannot keep off-site public records secret

A New Jersey appeals panel yesterday closed a loophole in the state Open Public Records Act, saying the ambiguity would have allowed government agencies to move documents off-site to prevent scrutiny.

The ruling came after the Gloucester County Board of Freeholders denied Clayton resident David B. Burnett access to settlement agreements because they were retained by the county's insurance carriers and nonstaff lawyers, instead of by the county.

In a 17-page opinion, the panel overturned a 2008 decision by Superior Court Judge Timothy Farrell, who said the county was not obligated to provide the off-site records.

The opinion, written by Judge Edith Payne, said Farrell's decision would have hurt citizens' rights under OPRA, "thereby thwarting the policy of transparency."

Burnett said Payne's ruling was "a win for hardworking families" who must pay for the settlements with tax money. Without the court action, "these boards had an opportunity to shuffle records around to outside agencies" to prevent them from being reviewed and questioned, he said.

Burnett, a former director of the county Republican executive committee, had his lawyer, Mark Cimino, ask for all settlements approved by the all-Democratic freeholder board dating to 2006. After more than a month of waiting for the complete set of documents, they sued.

Cimino said he had since received some of the records, which include awards made to a prisoner who suffered injuries in the county jail and to accident victims on county roads.

The New Jersey chapter of the American Civil Liberties Union filed a brief supporting Burnett's lawsuit.

"It was the county itself that chose to entrust its public records - that it was legally required to maintain - with contracted agents," the ACLU wrote. Refusing to turn records over because they were not in-house could "corrode the public's trust and confidence in our government agencies" and impede a free press, the ACLU said.

Freeholder Director Stephen Sweeney, who is also the state Senate president, did not respond to a request for comment.

County counsel Samuel J. Leone said that the county produced "thousands of documents" for Cimino to review and that the appeals panel took issue with "only one document" that was not provided. That "case was settled by the insurance company without any action or payment by the county," Leone said.

"The trial court found that the county met or exceeded any obligations that it had. We continue to believe that the trial court reached the proper conclusion and that Gloucester County did everything it was required to do and more," he said.

The appeals panel, however, reversed Farrell and asked him to review "the adequacy of the county's search" to decide what more the county should do. The panel did not address the number of documents at issue.

The latest opinion closely follows two other court rulings in the past year that suggested the county freeholders should be more transparent. In August, another state appeals panel ordered Superior Court Judge Francis J. Orlando Jr. to take a closer look at more than 60 alleged violations of the Open Public Meetings Act, or Sunshine Law, to see whether the freeholders were taking too many votes in closed session. The panel was concerned there might be "a pattern of wrongful conduct" by the freeholders, as alleged by Burnett.

During his review, Orlando last month rescinded a $21,600 workers' compensation settlement paid to Gloucester County Clerk Jim Hogan, saying it was improperly authorized in closed session. A few days later, the freeholders revoted on the settlement in public to correct the violation but offered little comment.

Cimino, who represented Burnett in both lawsuits, said his next step would be to ask the judge to appoint a monitor to prevent the freeholders from conducting "the public's business in secret."

Burnett said he was not surprised at the appeal panels' findings. "There's been an aloofness in this county, a certain arrogance, since we've been under one-party control for a long time," he said. "They need to be more transparent." The freeholder board has been composed of all Democrats for more than a decade.