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Public Records Act |
©2002 law.com
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Lawyers Oddly Mum on
Proposed Open Public Records Act Revamp
Revisions could close off discovery avenues, complicate
disclosure rules
Jim
Edwards
New
Jersey Law Journal
07-28-2003
Attorneys are often demonized for their lobbying efforts. Rare
is the politician who hesitates before blaming "the trial
lawyers" for rotten laws and flawed reforms.
So it is surprising that New Jersey's lawyers -- usually an
attentive bunch, especially on issues that affect them -- are
largely ignoring the state Privacy Study Commission's efforts to
alter the Open Public Records Act.
Since it became effective in 2002, the act has been used as an
extra discovery tool by some lawyers, allowing them to search
public bodies for lists of witnesses, plaintiffs, defendants and
potential smoking-gun memoranda.
On the defense side, the new law has bedeviled counsel for
municipalities and government agencies, who have had to get used
to granting the wishes of gadflies, muckrakers and marketers
seeking new junk-mail lists.
The proposed revisions -- though still unwritten -- could close
off some of those discovery avenues or complicate disclosure
rules for record-holders, and yet lawyers have shown almost no
interest in influencing the thinking of the commission, its
members say.
"I'm not sure that anybody is paying an awful lot of attention
to our investigation," says retired Middlesex Judge Rosemary
Karcher-Reavey, a commission member.
Another commissioner, Edith Fulton, also president of the New
Jersey Education Association, agrees. "I have mixed opinions
about attorneys, of course. They haven't shared any of their
thoughts with me," she says. "The public in general is basically
sleeping through this."
The commission will make proposals to the governor and the
Legislature in September on whether individuals' home addresses
should be added to the list of records exempt from the public
records act.
The act requires government agencies to hand over almost any
kind of document demanded by a requestor. Last November, for
instance, a suit that questioned the constitutionality of New
Jersey's death penalty procedures reached the Appellate Division
with an underdeveloped factual record, so it was remanded to a
trial court while the plaintiff made requests under the act that
combed through the Department of Corrections' archives to fill
out the gaps. New Jerseyans for a Death Penalty Moratorium v.
New Jersey Department of Corrections, MER-L-1740-02.
The State Bar Association confirmed that it has not approached
the commission yet, even though its report is due in less than
two months. "I can assure you that the Bar will be ready for its
comments and be positioned to respond," says Valerie Brown, the
organizations' legislative counsel. She cites the Bar's
diversity of constituencies as one of the problems in
formulating coherent advice.
But the commission hasn't heard from the Association of Trial
Lawyers of America -- one of the more unified lobbies -- either.
ATLA-NJ did not return a call for comment, but three privacy
commissioners confirmed they had received nothing from the
organization.
Among the few lawyers the commission has encountered are
American Civil Liberties Union Legal Director Ed Barocas, who
favors a presumption of privacy unless there is an "overriding
justification" for disclosure, and Assistant Professor Daniel
Solove of Seton Hall University School of Law in Newark, who
took a more robust pro-privacy line that called disclosure
"unconstitutional."
OTHER GROUPS MORE VOLUBLE
Lawyers' apathy stands in contrast to the vocal participation of
private investigators and title searchers, who have both offered
testimony to the commission.
"We did a big lobbying effort there," says Kitty Hailey, the
operator of Kitty Hailey Investigations in Moorestown. "Whatever
affects investigators affects lawyers. We cannot find a missing
witness in time to get them to court if we do not have access to
information. I cannot execute a judgment, find a deadbeat dad,
locate a stalker or check a background on an employee, or even
do a workplace sexual harassment case without access to
information."
Hailey's campaign to educate the commission -- she's also the
legislative chair of the New Jersey Licensed Private
Investigators Association -- has been one of the highlights of
the commission's work. Several commissioners mentioned it as one
of the issues that had not previously occurred to them but that
they now hoped to solve.
Hailey offered the commission a particularly stark anecdote
about what is at stake: A client of Hailey's whose husband had
died at age 40 went to visit her sister after the death and
checked herself into a hotel. While in her room, the telephone
rang. A man's voice on the other end said, "You may remember me.
I'm the person that raped you when you were 17, I still have the
knife. I understand you're alone again. I'll see you soon." And
then he hung up.
Hailey had gotten the case as a referral from another detective
who thought the woman's tale sounded too implausible to be true.
The client remembered only her attacker's first name and the
fraternity house at the college where it occurred. From public
records, Hailey managed to deduce that the man now lived in
another state, was a gun dealer and was of interest to the local
Sheriff's Department. "His car showed up outside of her house
one evening," Hailey said. Had she not had access to public
records containing home addresses, the stalker would have gone
undetected.
Particularly impressed with Hailey's testimony was commissioner
Grayson Barber, a Princeton solo practitioner. She's heard from
few lawyers so far. "They should be out beating the bushes," she
says.
"Lawyers should care about their ability to obtain records from
the government for a lot of purposes. For the purpose of any
lobbying that they might do, for the purpose of litigation, and
for maintaining their own rule as readers of the corridors of
power. On the side of privacy, lawyers should care about
protecting the privacy interests of their clients," Barber says.
Barber is not the only one who raised an eyebrow at the private
detectives' testimony. Last Friday, during a commission meeting,
the panel's staff lawyer, Catherine Starghill, mentioned that
the state police intend to offer comments that will counter the
detectives' arguments. Those comments have not yet been
delivered.
The commission regards itself as collegial, focused on coming to
a consensus, open-minded and willing to learn. It has been
uniformly staggered at the sheer size of the universe of records
that the public records act has opened to public view. The act
affects virtually every piece of paper or e-mail that any
government body produces.
The scale of some requests has been equally awesome. Albin
Wagner, chief of the State Department's Bureau of Records
Management, testified Friday that the public records act allows
individuals to demand entire databases -- everything the state
knows about anything -- in a single request. "These are some
issues that need to be clarified and addressed," he said, with
considerable understatement.
The commissioners come to the panel with various agendas,
although some of them believe they have been appointed because
of their naivete and willingness to be educated on the issues.
On one end of the panel's spectrum are the NJEA's Fulton and
Lawrence Wilson Jr., a retired Ocean County Prosecutor's Office
sergeant. Both are concerned that government employees'
addresses should not be handed out to aggrieved members of the
public whose intentions may be hostile.
At the other end is Thomas Cafferty, the lawyer-lobbyist for the
New Jersey Press Association and a partner at McGimpsey &
Cafferty in Somerset. He had a significant hand in writing the
public records act and favors altering it as little as possible.
In the middle sits Larry Litwin, the chairman of the commission
and an assistant professor of public relations and advertising
at Rowan University in Glassboro. "I am 100 percent open" to
arguments on both sides, he says.
While the commission has seen few lawyers testify, it is not
short on attorneys as members. Six of its 13 members are
attorneys.
A common sentiment among them is that they are seeking to come
to a single solution to the privacy/openness balance by
proposing a set of principles or tests that can be applied
evenly, from the smallest burg to the governor's office.
Consistency is their watchword.
Their report will go to the governor and the Legislature. Gov.
James McGreevey already has issued three executive orders
modifying the public records act, opening up the possibility
that he could simply incorporate the commission's work wholesale
into a fourth.
Time is running out for those who seek to influence the
direction of the commission's report. Although the commission
will be researching a variety of topics until next June, the
door is closing quickly on the home address issue.
On Friday, Barber told a representative of the NJEA to hurry up
if the organization wanted to contribute -- the deadline for
comments is July 31, she said. After that, further submissions
can come only in the form of public comment on the report. |
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