OPRA - Ledger - Supreme Court takes up issue of deadlines

Published in the Star-Ledger, Thursday, February 21, 2008

Top Jersey court to decide how open public records are
Hoboken councilwoman at center of the suit

By TOM HESTER
STAR-LEDGER STAFF

The state Supreme Court is considering whether to extend the deadline to sue for failure to turn over documents under the state Open Public Records Act and if a government should pay legal fees for forcing a lawsuit.

The high court heard arguments yesterday in an appeal by Hoboken Councilwoman Elizabeth "Beth" Mason, who wants to see the 45-day deadline extended to two years and the Hoboken government ordered to cover her attorney costs. Mason contends the open records law has no specific deadline -- lower courts have held it is 45 days -- and claims she was forced to sue when the city failed to respond in a reasonable amount of time.

"This case will determine whether government must be transparent and open or not," said Jeffrey Kantowitz, Mason's lawyer, "whether citizens have access to government records or not, whether there will be an incentive to pursue records when governments are not responsive."

The city insists it was meeting Mason's requests as quickly as possible and the court action was unnecessary.

Steven W. Kleinman, Hoboken counsel, said Mason filed numerous lawsuits against the city and one against the school board.

"The city's position is this is an incredible waste of time and money for all involved and no reason for it," Kleinman said.

Mason, an independent, was elected to the four-year city council term in May, but has been seeking city records since 1999. She was a member of the city planning board in 2001 and 2002 and is also founder of the New Jersey Foundation for Open Government.

According to Mason and Kleinman, she has requested a copy of every city financial transaction for 2003 and 2004, a copy of every permit application over a four-year period, pension and salary background on some employees, a copy of the city's health coverage contract, a copy of the budget and information on government escrow funds. She also asked to review every OPRA request filed over a four-year period.

Mason said at a time when Hoboken is undergoing booming redevelopment, she is suspicious of a city government which has a checkered history of corruption going back at least 40 years.

"Either our government has to tell us the truth about what it is doing and how it is spending our money, or it will be allowed to keep secrets that in the end, cost us money and give us lousy leadership," she said. "OPRA is a tool created by the Legislature to allow us to watch over our government. But many communities disregard OPRA and are violating the public's right to get important government information."

Kleinman told the justices in one case, the government responded to Mason in eight days that it was attempting to compile the information within two weeks. He said the request came at a time the then-business administrator was absent due to a death in the family. "The city of Hoboken was acting in good faith and attempting to respond to an extraordinary OPRA request," he said.

Justice Barry Albin speculated if a government did not have to cover legal fees when it was sued for not providing public records, it could delay until a citizen dropped the request because the individual could not afford a lawyer to go to court.

Government could "play with every request, force a person to file a lawsuit, give up the documents and go home," Albin said. "Do that long enough and no one would ever make a request."

Mason's case has the support of the New Jersey Press Association, the American Civil Liberties Union and the Libertarian Party. Hoboken has the support of the state Attorney General's office.

Tom Hester can be reached at thester@starledger.com or (609) 292-0557.

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