Government transparency in N.J. a murky affair

Gov. Christie does not necessarily deserve the blame for N.J.'s opacity, which predates his arrival in Trenton. MEL EVANS / AP
Gov. Christie does not necessarily deserve the blame for N.J.'s opacity, which predates his arrival in Trenton. MEL EVANS / AP
Posted: June 18, 2012

TRENTON — I didn't know a hearing had been scheduled on my 18-month-old request for records from Gov. Christie's office until eight days after the hearing happened.

Turns out I lost. I was not surprised.

The entity that handles appeals of rejected requests for public information meets once a month in a first-floor office in Trenton. Windows offer a view of an atrium outside, but it's difficult — literally and otherwise — to look from the outside in.

Called the Government Records Council, this agency adjudicates appeals from all levels of New Jersey government, from your school board on up to Christie's office. I reviewed its records, excluded obviously frivolous complaints, and found that under Christie, the GRC has ruled on 44 cases involving state departments.

And all 44 times, the GRC sided with the Christie administration.

The GRC is supposed to have five members appointed by the governor, but Christie has left it with three for most of his term. There are now four, including a Christie campaign donor, Christie's education commissioner, and Christie's community affairs commissioner.

And though the 44-0 record compiled by the short-staffed GRC is interesting, if you were to show up at a GRC meeting, you wouldn't be able to keep score yourself.

You might hear cases involving, say, the Department of Environmental Protection or the Camden City school board. And you would hear votes tallied by council members. But in a novel approach to governing that only Kafka could appreciate, you would not know what those votes meant. Who won? Who lost?

Who knows?

Rulings on whether documents can remain secret are secret themselves — pending formal notification to the parties involved informing them of the decision.

At the GRC's May meeting, for example, all 35 cases on the agenda were approved without a word of deliberation. Neither I nor the one other member of the public in attendance knew how the GRC voted on any of the cases — but the dozen or so GRC staffers and council members at the front of the room did.

Consider William Scott Jr., whom I met at the GRC's April meeting. Scott waited 21 months for his case to be heard. He drove two hours to Trenton to find out whether the GRC would let him see documents detailing how a politically connected Essex County nonprofit got a six-figure grant even though it had applied months after the deadline.

A motion was made for a vote on Scott v. County of Essex, 2010-169. Then came a second. The vote was unanimous. There was no discussion. Next case.

Scott was confused. Had he won? What was the unanimous vote for? During the public session, he asked whether he had won the right to obtain the documents.

"You'll be the first to know what your decision is," said Catherine Starghill, the GRC executive director.

Just not now. In five to 10 days, when the notice would be mailed to him. "We just don't want the public to know before the parties do," Starghill said.

For the first time in a dozen years as a reporter, I raised my hand and sat down at a table in the center of the room. I introduced myself as a member of the press.

Is it correct, I asked, that the votes are public but what you're voting on is not? Yes, they said.

I was dumbfounded. Imagine Congress voting on Obamacare live on C-SPAN but not saying afterward which way it had voted. I couldn't let this go, and I approached Starghill after the meeting.

I've been to hundreds of public meetings in New Jersey, I told her, from planning boards on up. I have never heard of something like this.

Have you ever been to appellate court, she countered. Because that's the way it works there.

I disagreed. An appellate court doesn't take its vote in public and then refuse to disclose how it votes. It leaves to deliberate, and later releases its vote and ruling at the same time.

Our decisions are not always win or lose, she said. Reading the conclusions takes too much time.

Longtime GRC observers say the decisions were once read aloud, but that changed a few years ago.

"Whose interests are they protecting?" Scott asked.

For its part, a GRC spokeswoman (who is also a spokeswoman for Christie's Department of Community Affairs) affirmed the council's independence. GRC decisions can also be appealed to court, she noted, and of the 2,326 decisions rendered in its history only six have been reversed on appeal. "A legally accurate decision by the GRC in favor of any administration," she said, "is more an affirmation of the [public record] custodians' thorough knowledge of [the law] than any indication of political influence of any kind within the GRC."

But the public might be shocked to find out just exactly what the government doesn't have to reveal.

The state police has rejected journalists' requests for copies of its official policies. And the state attorney general decided last year that state police overtime records cannot be released.

The Department of Treasury recently wouldn't provide me a copy of a completed $335,000 report that may have prompted Christie to pursue privatizing the $2.6 billion state lottery. And when the Department of Community Affairs recently sent out a news release announcing new rules for affordable housing, it didn't attach the actual rules. Turns out those won't be public until July. We'll see.

Who flies on Christie's state police helicopter? Who visits the governor's mansion? That's the state's secret.

A recent request for Christie's staff's travel vouchers turned up hundreds of pages, with obvious — and legal — redactions, of credit card numbers, for example. But some redactions made me scratch my head. On Nov. 30, 2010, for example, Patricia Caliguire, a Christie policy aide, went ... somewhere? Those details are blacked out across 7½ lines. The only words visible are meet and, at the end, return to office.

Caliguire's trip to somewhere to meet with someone cost taxpayers $40.92.

Such opacity is not necessarily the fault of this governor or his officials. Before Christie came to Trenton, Gov. Jim McGreevey bypassed the Legislature and signed two executive orders limiting the flow of information, including one that prohibited the release of "consultative" materials. Because papers are pushed around government, what isn't "consultative"?

That hurdle is just one New Jerseyans must jump to get information. Public employees are even forbidden from doing "research" to gratify your request. Do they consider it "research" to get up from a cubicle to pull a document? And how would we ever know?

In my case, I was picking up a request that was initially filed by my colleague, Cynthia Burton. The newspaper sought travel records and the contact list for those who receive the governor's publicity e-mails.

I was most interested in the e-mails. Christie's popularity around the country has been fueled, in part, by his ability to communicate what he says he's doing in New Jersey, and I was curious who receives those promotional YouTube clips and news releases prepared on the public's dime. My reading of the law, and a reading by The Inquirer's attorney, indicated this was public information.

The Governor's Office initially rejected the request because it failed "to identify any specific government records," and it was "unclear as to what constitutes material sent electronically to publicize Gov. Christie."

The governor's attorney also said my use of the word publicize was problematic, because it is "unclear and open to interpretation." The Webster's Third New International Dictionary definition of publicize was cited.

Later, the attorney certified — swore — that no "uniform recipient list" exists for Christie's news releases.

You need "the magic word," explained John Paff, a veteran crusader for open government in New Jersey. Under the state's record law, a requester must use the correct name for the document. Otherwise, the government is not obligated to produce it.

"Recipient list" was apparently not the magic combination of words.

So I was out of luck. But I nonetheless appealed the case. The next year (yes, year), the GRC held a hearing in which it unanimously voted against me. I wasn't notified beforehand that my case would be heard (although agendas are posted online a couple of days beforehand).

My presence would have not shed light on why my request was denied. Deliberations generally don't occur or are done behind closed doors after state staffers make recommendations to the four GRC members.

"I had no idea what they were doing," said Democratic Sen. Loretta Weinberg of Essex County, who stopped in at the April GRC meeting. Last week, she announced legislation that would both expand the number of documents available to the public and reduce the governor's influence on the GRC by giving legislative leaders the opportunity to appoint two members.

The implications go far beyond the interests of nosy journalists and local gadflies. Curious how much an administrator earns at your child's school, or why the mayor's son got a big city contract, or who was arrested down the block last week?

That's all supposed to be public information. And if it's denied by a corrupt or ignorant public worker, the GRC is your recourse.

Alternatively, if you have money for filing fees and a lawyer, you can go to court. That's where several First Amendment crusaders in the state told me they always go.

It's the only way they say they can hope to win. Because, as Scott says, once at the GRC, "nothing is revealed."

The GRC restricts access in other ways. In writing opinions on what is protected from public view, it has created precedent, and it refers to its own rulings to justify the denial of records.

Christie did create a regularly updated website, YourMoney.NJ.gov, so people can look up any state employee's salary, any retiree's pension and any state department's revenue, expenses, and purchases. There are data on property taxes, debt, and the budget.

But telling the story behind your money — that's the business we're in. And that requires getting information the government doesn't want you to have.

I left my first GRC meeting with "magic words" spinning in my head. In the car on the way back to the Statehouse, the radio blared a news story about an electoral commission in Egypt that was kicking candidates off the presidential ballot. It was not immediately clear why the candidates were being kicked off, or who was making the decisions, the reporter said.

The government didn't want anyone to know.

Contact Matt Katz at 609-217-8355, mkatz@phillynews.com, or follow on Twitter @mattkatz00. Read his blog, "Christie Chronicles," at www.philly.com

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