JUDGE HODGSON GIVES MAJOR BOOST TO CONTINUED TRANSPARENCY IN TOWN HALL

The New Jersey Open Public Records Act (OPRA) is a major factor in how citizens across the state, including the members of the media, learn how governmental decisions are made and how our tax dollars are spent.

Our knowledge of what's going on in Town Hall is what keeps government transparent in their decision making and taxpayer dollar spending.

As previously reported here on FAA News, earlier this year Democrat Governor Phil Murphy today signed into law sweeping reforms to the OPRA that will take some information that’s currently public and shield it from view, effectively gutting access to public records.

In drafting the bill, the legislation's sponsors are listening to the concerns of small-town New Jersey mayors, according to State Senate President Nick Scutari.

On the other side, advocates have said that Murphy's signature erases decades of progress in gaining access to documents and information paid for by New Jersey taxpayers.

One of the controversial parts of the legislation allows for a court to “issue a protective order limiting the number and scope of requests the requester may make” if they “sought records with the intent to substantially interrupt the performance of government function.”

While most Republicans voted adamantly against the bill, Senator Robert Singer and Assemblyman Sean Kean who represent Lakewood, voted in Committee and on the floor in favor of the bill. Democrat Assemblyman Avi Schnall also voted strongly in favor of the bill.

On May 20, 2024, while the bill was still pending, Township of Berkeley officials decided that one resident was exploiting OPRA, punitively, in an attempt to disrupt and hamstring the orderly operations of the Township.

Township Attorney Robin La Bue Esq. filed a petition in New Jersey Superior Court in Ocean County seeking to limit the resident, Scot Madlinger, to file no more than 5 requests for records with the Township of Berkeley and/or the Township of Berkeley Police Department each month.

The petition further sought to "permanently enjoin and restrain Madlinger from filing frivolous and meritless complaints against the Township of Berkeley and its officers and employees."

"Unfortunately in certain cases, OPRA is being utilized as a tool of disruption. Defendant Scott Madlinger exploits OPRA, punitively, in an attempt to disrupt and hamstring the orderly operations of the Township. In 2022, he filed 402 requests costing the Township approximately $217,923.01 in terms of employee time alone. In 2023, he submitted 523 requests resulting in a cost of $237,100.20 in employee time. Attorneys fees for review of his requests, redaction of documents, response to Government Records Council Complaints and review of body camera videos for 2022 and 2023 totaled $74,728.50 and $75,008,00 respectively. In January and February of 2024 alone, he filed 163 requests. 

"A sample of these requests demonstrate that Mr. Madlinger is not seeking a window into the inner workings of government, but he has another agenda. The record reflects that the Defendant requests documents relating to every arrest, every motor vehicle accident, every overdose, every body camera, every radio transmission, every 911 call of every incident, accident or arrest and the result is crippling. Defendant’s purpose is not to unveil the inner workings of government. The intent is to disturb and annoy Township Officials and the disruption of governmental operation. Defendant has no regard for the schedules, limitations, or other work of any Township Employee he deals with on a daily basis. They all exist to serve him, or as a subject of his derision or abuse. Defendant’s conduct constitutes harassment.

"It is clear from the actions of the defendant and his daily discourse with the employees of the Township of Berkeley that the motivating purpose behind his requests is not the receipt of information, but the intentional disruption of governmental functions at the Township. His interactions are tactically malevolent. When he does not get “what he wants when he wants it.” He focuses his efforts on the creation of more work, because he knows the clerks have no other recourse.

"When a response is a day late, he files a complaint with the Government Records Council. His requests have taken a toll and have compromised the functionality of every department of the Township, resulting in a disruption of services to the entire community.

"The purpose of OPRA is to “maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process.” It is not to arm disgruntled citizens to exert power or influence over municipal employees.

"Plaintiff’s use of the Government Records Council constitutes malicious use of process which is causing process to issue maliciously and without reasonable or probable cause.

"The Township does not seek to prevent Defendant from filing OPRA requests, it seeks an order limiting his requests to a reasonable amount, to reduce the strain on the resources of the Township and the Township’s employees. Or in the alternative a special handling fee to be assessed to plaintiff for any requests over 15 in any particular month," Ms. La Bue wrote.

At oral arguments held on Friday, Judge Hodgson was not persuaded.

He noted that the new legislation only went into effect on September 9, and the Township’s complaint is from prior to that date.

Additionally, Judge Hodgson was not impressed with the Township's claims that the intent of the records requests are "to substantially interrupt the performance of government function.”

"The Township's incurment of legal fees to defend against GRC complaints simply does not constitute 'substantial interruption of the performance of government function,' Judge Hodgson stated, explaining that even if the Township wants to amend their complaint to include any post-September 9 acts, they need to cause employees to be hired or diverted to deal with his stuff in order for the Township to be able to state a claim of "important interference."

Judge Hodgson's ruling is a shining light for transparency and a smack in the face to our legislature who sought to "take care of their mayor buddies."

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