A city councilwoman in New Jersey has taken her records fight against the Hoboken City Hall to the state Supreme Court.
Councilwoman Beth Mason’s suit raises two questions regarding New Jersey’s Open Public Records Act: how long a person has to wait to file a lawsuit if a records request is not fulfilled, and whether a plaintiff should be awarded attorney’s fees if requested documents are provided after a lawsuit is filed, but before a court decision is made.
The case stems from two lawsuits Mason filed in 2004 relating to the city hall’s failure to respond to municipal records requests either at all or within the required seven-day time period. These cases were joined at the appellate court level and the three-judge panel ruled against Mason on both counts in January. She then appealed to the state’s high court.
The city handed over one set of a documents, a financial ledger from 2003, after Mason filed suit, but before a decision was made. The appellate court ruled, however, that she waited too long – more than 45 days – to file suit.
Mason said these are two of six cases she has filed in the past few years. A strong advocate for open records, Mason said these lawsuits signify the importance of public access to government records.
"It’s about the public’s right to get this information at a cost that’s affordable," she said.
John J. O’Brien, executive director of the New Jersey Press Association, said that if the court upholds the lower decision, it could further permit the government to take records fights to the brink of a trial, and then cough up the information before any actual court action occurs. And, according to the current state records law, attorney’s fees are not awarded until a suit goes to trial.
“We’re trying to overturn the appellate decision in this case because we would feel it could create a loophole for agencies that would stymie the public’s right to access,” said O’Brien, whose organization filed a friend-of-the-court brief in the case.
Steven Kleinman, an attorney for the city of Hoboken, said the appellate court’s ruling adequately weighs the government’s duty to respond in a timely fashion with the requester’s responsibility in not filing unnecessary lawsuits or overly-broad records requests.
“The [New Jersey records law] balances the rights of requesters of records and the taxpayers the government services,” Kleinman said.
O’Brien stressed the fact, though, that individual requesters cannot typically afford attorney’s fees, and so if this case stands, the financial intimidation factor for those people will only escalate, decreasing the amount of records requests the government sees in general.