High Point OPRA Suit Opens Debate On Public Records Law

Posted: September 14, 2012 in County Wide
Tags: , , , ,

An interesting article on the front page of today’s New Jersey Herald details the lengths government will go through to keep their operations from public scrutiny. In this case, a lawsuit has been filed by open records advocate John Paff, in an attempt to compel the High Point Regional Board of Education to make public a report on an investigation into an incident between a school superintendent and a student. The Herald reported:

“The investigation, which concluded in April, was prompted by an incident off school grounds last November in which (Superintendent) Hannum, while nude, allegedly approached and engaged in conversation a male student in the locker room at Minerals Resort and Spa, in Vernon, where the student had been working as a lifeguard. The student later related the incident to a teacher, who filed a police report on Nov. 30. According to the police report, the student told the teacher that the incident made him uncomfortable but that no inappropriate comments or further actions were taken by Hannum.”

Paff’s lawsuit raises an interesting question: In the light of the revelations of the official cover-up in the case of Jerry Sandusky, and the botched investigation in the case of Dennis Pegg, can we trust government officials to determine what should or shouldn’t be withheld from public scrutiny? Especially when they are directly or indirectly parties to what has occurred?

According to the report prepared by former FBI Director Louis Freeh, officials knew about Sandusky’s activities as early as 1998, but participated in a cover-up that allowed the predator to act with impunity.

The full Freeh Report can be read here.

Paff’s lawsuit makes this important argument, which is reported in the Herald’s excellent story:

In his complaint, Paff argues that since the report was said to have exonerated Hannum, the onus should now be on the board and on Hannum himself to explain why Hannum’s privacy interest supersedes the public’s interest in knowing the basis for the report’s conclusion that no misconduct took place.

Under the Open Public Records Act (OPRA), school boards and other government bodies must make most of their records publicly available for inspection, copying, or examination by citizens. However, the law also provides certain exceptions for matters affecting personnel and employee privacy. The law states that a “public agency has a responsibility and an obligation to protect a citizen’s personal information that is in the possession of a public agency when disclosure of that information would violate the citizen’s reasonable expectation of privacy.”

Lauren James-Weir, co-general counsel to the New Jersey Press Association, said that under the strict standards of the Open Public Records Act, a case could likely be made that the board’s investigative report is exempt from disclosure. But she said that under what is known in legal parlance as the common law right of access, there are additional considerations that can, in some instances, override the exceptions allowed under OPRA.

The common law right of access, she said, recognizes the need for a “balancing act” between the public’s right to know and the government’s interest in keeping a matter confidential. Since it is now a matter of public record that a police report was filed regarding the encounter last year between Hannum and the teen, and since elements of that report are now public knowledge, she said a case could be made for the public’s interest in having the other relevant facts of what happened made public.

Paff’s lawsuit, of which a copy was provided to the New Jersey Herald, appears to rely heavily on that argument.

Sussex County taxpayers should stay tuned to this and other legal action to open up OPRA.

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