We previously blogged about an OPRA lawsuit we filed on behalf of an activist seeking access to Newark’s Amazon HQ2 proposal. We are happy to announce that Newark has now released its proposal to our client.
Newark’s proposal is titled, “Yes, Newark.” As evidenced by the privilege log it attached to the proposal, Newark redacted approximately 6 pages from its 200+ page proposal. These pages contained the financial incentives that Newark is offering to Amazon. All other information has been disclosed. We consider this a significant transparency victory.
“I strongly believe in open government. The people of New Jersey, especially Newark residents, deserve to know what their government is doing,” said Plaintiff Steven Wronko, a transparency advocate.
“Other finalist cities put their proposals online as part of their PR campaigns to win Amazon over. The citizens of those other finalist cities got to be part of the process and see how their cities were being promoted. That builds pride and buy-in from residents. The people of Newark were completely excluded, but we are happy that they can now be part of the process,” said CJ Griffin, who represented Mr. Wronko.
Among other things, the proposal highlights Newark’s diversity, technology infrastructure, and transportation systems. It includes more than 50 pages of letters of recommendations and details the proposed locations within the city for the headquarters:
We think the answer is obvious: if a government official conducts official government business on a social media account (such as updating constituents on official matters), than those accounts are government records and are subject to access under OPRA.
A “block” list is available on both Twitter and Faceook. Sample request language:
“Pursuant to OPRA and the common law, I seek the list of blocked users from the Facebook or Twitter account of _________. The URL of that account is _______________.”
We have always recommended that clients challenge their OPRA denials in Superior Court. Why? Primarily because the process is significantly faster. An action filed in Superior Court will generally be resolved within 2-4 months in most cases, unless there is an appeal. This expedited process is vital to transparency, especially for reporters who need the records to report news to the public in a timely fashion.
In contrast, we have filed 4 denial of access complaints in the GRC and the process was unbearably long. One case took 25 months, another 22 months, and a third took 13 months. The fourth matter is still pending 24 months later, although the GRC did issue an interim decision 19 months into the case. We do not know when a final decision will be issued. OPRA mandates that the GRC handle cases “as expeditiously as possible,” but the GRC does not seem to be living up to that mandate.
The GRC was supposed to be the faster, easier alternative to filing a lawsuit in state court. But a review of the council’s internal tracking system shows it has a backlog dating back to 2014, tying up some cases without a resolution for years.
The story explains that the GRC suffered considerable budget cuts and staffing shortages under the Christie Administration. Whatever the cause for the GRC delay, we hope that this problem is remedied as too many citizens go to the GRC to file a simple complaint and end up not getting access to the records they sought for years.
On February 20, 2018, Pashman Stein Walder Hayden partner CJ Griffin filed an OPRA lawsuit against the City of Newark on behalf of long-time client Steven Wronko. The lawsuit seeks access to a copy of Newark’s AmazonHQ2 proposal.
For our prior press release about the suit and a copy of the complaint, click here.
On March 26, 2018, Newark moved to dismiss Plaintiff’s complaint. In support of its motion, Newark submitted a certification by Aisha Glover, Executive Director of the Newark Community Economic Development Corporation (“NCEDC”), which simply stated that a) Newark is bound by a non-disclosure agreement and b) Newark would be at a competitive disadvantage if it released its proposal. Newark’s motion brief and Glover’s certification (with the non-disclosure agreements) can be found here and here.
On April 3, 2018, Plaintiff opposed the motion to dismiss. Plaintiff’s brief can be found here and his argument is summarized as follows:
The non-disclosure agreement a) only applies to information that Amazon has disclosed to Newark and b) expressly states that agencies may comply with their public records laws
Newark has not offered any evidence regarding type of content within its proposal and why releasing that type of information would put it at a competitive disadvantage. Our courts have repeatedly held that an agency cannot overcome OPRA’s presumption of access by simply making a conclusory statement that a record is exempt or that harm will occur if a record is released.
Many of the details that Newark says it cannot release without putting it at a competitive disadvantage have already been released by Newark itself. For example:
Newark states that the proposed site locations for Amazon HQ2 are secret, yet in December it took a group of reporters on a bus tour of those locations and even provided renderings directly from its proposal! To see those renderings and read about the tour, check out these stories and slideshows by Real Estate NJ, ROI-NJ, and NJ.com.
Newark states that its incentives are top secret, but the Legislature’s $5 billion incentive package and Newark’s commitment to $2 billion in additional incentives has already been disclosed to the public.
Newark has not proven that its proposal cannot be released in redacted form to protect any remaining non-public information while permitting the public to see the bulk of the proposal. OPRA requires records to be redacted so that non-exempt information is released. Many of the finalist cities have taken this approach and have released their proposals with redaction to non-public information. Some finalist cities, such as Boston and Washington D.C., have even gone so far as to create entire websites as part of their pitch, which contain their proposals. Newark, however, denied complete access to its proposal, even though it has disclosed much of the information within it to the press already.
Hearing: The Honorable Jeffrey B. Beacham, J.S.C., will hear oral argument on Friday, April 20, 2018 at 9:00 a.m. at the Essex County Historic Courthouse in Newark, NJ.