The Sidebar

A New Jersey Superior Court judge has determined that a Georgia man can access state records under the Open Public Records Act (OPRA). That differs with a decision rendered earlier this year by an Atlantic/Cape May County Superior Court judge who said out-of-state residents have no right to benefits of the act.

Peter Heimlich, an Atlanta-based investigative blogger, filed a lawsuit in June challenging the Educational Information and Resource Center's (EIRC) denial for records filed under OPRA because he was not a state resident. Attorney C.J. Griffin, of Pashman Stein Walder Hayden, represented Heimlich and specializes in First Amendment law. (cont.)

Today the Honorable Georgia M. Curio, Assignment Judge in Gloucester County, ruled that a person need not be a resident of New Jersey to gain access to government records under New Jersey’s Open Public Records Act. Despite OPRA’s opening statement that government records “shall be readily accessible to citizens of this State,” Judge Curio found that the remainder of OPRA’s statutory provisions clearly provide that “any person” may request records and that any ambiguity in the statute was to be construed in favor of access in accordance with the State’s public policy of transparency. Accordingly, she held that Peter Heimlich, an investigative blogger who resides in Georgia, had standing to request records from the Educational Information Resource Center in New Jersey.

Curio is not the first judge to rule on this issue. Law Division judges in Burlington County and Ocean County have both held that “any person” may request government records under OPRA, not just citizens. One judge, however, in Atlantic County, has found that only citizens of New Jersey may request records. That decision is currently being appealed.

“New Jersey is often the subject of national news and is situated between two national media markets, New York and Philadelphia. It makes no sense that national news media would not be able to gain access to New Jersey’s records simply because their journalists do not live here,” said CJ Griffin, attorney for Mr. Heimlich. “We are very pleased that Judge Curio recognized that OPRA repeatedly states that ‘any person’ may gain access to government records and that she has refused to limit OPRA’s scope.”

“The public benefits when government records are made publicly available, regardless of whether they were requested by a local resident or by a journalist who wishes to publish a news story on an newsworthy event occurring in New Jersey.”

For more than a decade, agencies have been responding to OPRA requests without ever inquiring whether the requestor was a State resident. Recently, that changed. While two courts have held that you do not need to be a resident to file an OPRA request and the issue is pending before the Appellate Division, the EIRC decided to cite the lone judge who has ruled that New Jersey citizenship is required to file an OPRA request. In doing so, they have essentially shut down access by out-of-state reporters and investigators. The Legislature surely could not have intended that only in-state media has a right to access records under OPRA, given that NJ is situated between two major media markets.

A decision that requires one to be a New Jersey resident in order to file OPRA requests is simply not enforceable and it undermines provisions of OPRA that permit anonymous requests.

While there is a single reference to records being available to ‘citizens of this state’ within OPRA’s opening declaration, repeatedly throughout the statute the Legislature made it clear that ‘any person’ may request records; ‘any person’ may inspect records; ‘any person’ may file a lawsuit for the unlawful denial of access to records. In fact, under OPRA’s predecessor law, those same provisions did say ‘any citizen,’ but in enacting OPRA the Legislature went out of its way to change every single operational provision to make it clear that ‘any person’ may utilize the statute.