Wednesday, October 14, 2015

Pinelands Commission settles OPRA case filed by watchdog group.

On May 20, 2015, the New Jersey Pinelands Commission agreed to settle a July 2014 Open Public Records Act (OPRA) lawsuit filed by the Pinelands Preservation Alliance.  At issue was the Alliance's March 4, 2014 OPRA request which sought records related to a Memorandum of Agreement between the Commission and the New Jersey Board of Public Utilities regarding construction of a controversial natural gas pipeline in the Pinelands region.  The OPRA request, which was submitted on the Alliance's behalf by Pennington attorney Michael L. Pisauro, contained sixteen numbered paragraphs each seeking a separate category of records.

In its May 30, 2014 response to the OPRA request, the Commission, noting that Pisauro and Theresa Lettman reviewed the file on May 12, 2014 and scanned certain documents within it, denied the request for being "overly broad, redundant or fail[ing] to identify" the records sought. While some records were disclosed with the response, access to other, unidentified records was denied based on the inter-agency, advisory or deliberative (ACD) exemption.

In its brief, the Alliance argued that its requests were reasonably specific and could not be subject to the ACD exemption because they were between the Commission and the BPU, which it described as being "in essence the applicant in this instance."  "If all communications between an applicant and the Commission are deliberative the Commission has found a way to circumvent a vast majority of the OPRA law," Pisauro argued on the Alliance's behalf.  Pisauro also argued that the Commission's failure to "clearly identify which documents they believe to be deliberative" is a "fatal flaw in the Commission's response."

The Settlement agreement discloses that after the lawsuit was filed, the Commission produced additional records on September 15, September 29, October 9, October 22, October 23 and November 20, 2014.  While the records later disclosed are not identified, any person could obtain them by submitting an OPRA request.  The Commission also agreed to pay $4,000 to Pisauro for his legal fees.

The lawsuit, brief and settlement agreements are on-line here.

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