Thursday, October 9, 2014

State refuses to identify municipal professionals enrolled in state pension plan. Claims that those professionals have a "reasonable expectation of privacy."

In 2007, the New Jersey Legislature enacted N.J.S.A. 43:15A-7.2, which was intended to curtail the participation of professional service providers such as attorneys and engineers in the New Jersey Public Employees’ Retirement System (PERS). The law, which became effective on January 1, 2008, made these professionals ineligible for PERS participation as of the expiration date of their existing contract or annual appointment.

Despite this mandate, the New Jersey's Office of the State Comptroller (OSC), in a July 17, 2012 report entitled "Improper Participation By Professional Service Providers In The State Pension System," (on-line here) found that "an overwhelming majority" the municipalities and school districts it surveyed had "failed to comply with the statutory requirement to remove independent contractors from PERS."  This failure, the OSC report noted, has the potential to cost the state millions of dollars in inappropriate future pension benefits."

According to the report, the OSC developed a list of 332 professionals, retained by 228 municipalities and school districts, who remained in the PERS system after the law took effect.  The OSC then conducted a survey of 58 of the 228 local units and several of those municipalities surveyed are mentioned in the report.

On September 22, 2014, I submitted an Open Public Records Act (OPRA) and common law right of access request (on-line here) to the OSC for a list of the 332 PERS-enrolled professionals as well as a list of the 228 local units that retained those 332 enrollees.  In his October 8, 2014 letter (on-line here), OSC Records Custodian Robert Shane denied access to these lists claiming a "reasonable expectation of privacy" that the pension-enrolled professionals have "in not publicizing the fact that he or she is under investigation by a public agency."  According to Shane, "the reputational harm to targets of investigations in the absence of confidentiality is well-recognized" by law.  He also denied access on the basis of there being an on-going investigation and because the types of pension records I requested are specifically exempted from access by the OPRA.

In response to my request under the common law right of access, Shane claimed that "the public's interest in confidentiality of the documents outweighs the requestor's interest in access."

I am considering litigating this denial.

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