Transparency advocates lose case over prosecutor group’s records

A state appellate panel ruled Thursday that the County Prosecutors Association of New Jersey, as a nonprofit, doesn’t have to release records the American Civil Liberties Union of New Jersey sought under the state’s public records laws.

The decision is a blow for transparency crusaders, who warn it could embolden other groups that get public funding or are similarly aligned with public officials to try to dodge accountability under the state’s Open Public Records Act.

“This is a disappointing decision that could open the door to all sorts of government officials evading OPRA by using nonprofit organizations to do business — and still using the resources of the government to run those organizations,” said attorney CJ Griffin, who specializes in transparency work.

Karen Thompson, the ACLU senior staff attorney who argued the case, said her group may ask the state Supreme Court to consider the case.

“We believe that New Jerseyans are entitled to know how criminal legal policy is made. CPANJ is an organization that uses public employees, it uses taxpayer resources, and it uses all of these things to harness county prosecutor power. Those things should be subject to public records transparency,” Thompson said.

The case dates back to July 2019, when the ACLU filed requests under OPRA and the common law right of access asking the association for meeting agendas and minutes, records on its funding, briefs it filed in state and federal courts, and policies or practices county prosecutors shared with the association.

The association responded two months later, denying access to all requested documents. The ACLU sued for access, and a trial court sided with the association and dismissed the ACLU’s complaint. The ACLU appealed, and Thursday’s decision affirms the lower court’s decision.

Superior Court Judge Richard Geiger, writing for a three-judge panel, noted the association wasn’t created by state law and has no statutory powers or official authority, and membership is optional and unpaid.

“While CPANJ has a role in formulating criminal justice policy, it does so as a private entity that has no governmental authority,” Geiger wrote. “Simply put, a document cannot be a common public record if it is not ‘made by a public official in the exercise of his public function.’”

Christopher Gramiccioni, who represented the County Prosecutors Association of New Jersey, said the ruling is consistent with his client’s view that the association is simply not a public agency. There are plenty of instances where a public employee joins an advocacy group or club, and that doesn’t mean that those organizations become public agencies subject to OPRA scrutiny, he said.

“If you have somebody who happens to be a public official who volunteers for a charity, it could easily be a slippery slope,” Gramiccioni said.

The ACLU had argued that all of the association’s officers, trustees, and members are county prosecutors appointed by the governor and paid by the state. They regularly meet and partner with the state Attorney General’s Office and other law enforcement officials to create and implement statewide criminal justice policy, ACLU attorneys wrote.

In a brief Griffin filed on behalf of Libertarians for Transparent Government supporting the ACLU, she wrote that OPRA requests the Libertarians group filed with county prosecutors revealed that county governments paid the association at least $1.7 million since 2015, including more than $2,000 the Burlington County prosecutor’s office seized from defendants to pay the association’s membership dues.

The association brought in close to a half million dollars in 2019 from educational conferences and membership dues, according to its most recently filed 990 tax form.

County prosecutors also used government-issued email and video-conferencing platforms and tasked their staffs to carry out association business, Griffin said. They also worked on association business on public time, with the Mercer County prosecutor’s office representing the association in the ACLU’s case, she added.

“The association used government attorneys to defend themselves, and no other nonprofit organization would ever be able to use the county prosecutor’s office as their personal law firm for free,” Griffin told the New Jersey Monitor. “It raises serious questions to me whether public officials can use their offices and taxpayer dollars for private organizations, and whether there’s ethics laws at issue there.”

(Griffin has performed legal work for the New Jersey Monitor.)

The ruling seemingly contradicts a 2011 state Supreme Court decision that declared the New Jersey League of Municipalities a public entity subject to disclosure requirements, Griffin said. Unlike the association, the league was authorized by state statute, according to its website. But like the association, it’s a voluntary organization whose members are government officials who carry out public business.

State legislators have done little to expand OPRA in the 20 years since it was adopted, chipping away access in recent moves to limit commercial access and shield public officials’ addresses.

Thursday’s ruling adds to that “constant drip-drip-drip” erosion of transparency in New Jersey, Thompson said.

“It’s just a very dangerous road to move down,” she said.

New Jersey courts more often have expanded public access to records, with recent rulings on police disciplinary records, settlement agreements involving public agencies, and even the names and addresses of dog owners.

“We certainly shouldn’t be narrowing a decade of very strong jurisprudence out of our courts around who is a public agency and who’s subject to OPRA,” Thompson said.