Public Records Lawsuit Settled for $90,000

Published on July 27th, 2011
Written by Public Record Finder Staff

Battles over public records continue to travel in and out of courthouses across the country. The understanding of the availability of public records is blurred at times and unanswered conflicts can lead to thousands of dollars in fees for any party involved.

Superior Court Judge Timothy Farrell, presiding over Gloucester County, NJ, ruled against the county in May, in a public records lawsuit, and ordered the county to pay $89,812.50 in attorney's fees, and $1,631.35 for other costs. The case, involving the Open Public Records Act (OPRA), was ongoing for three years. The board of freeholders voted unanimously on July 6 to settle the suit once and for all. The county is not happy about the final decision and it had a few words to say about it.

The county was being sued by violating OPRA. It failed to supply attorney Mark Cimino his requested legal settlements records. The judge did not directly find the defendant guilty of knowingly violating OPRA, but he did sentence the county to pay the attorney fees totaling $89,812.50 and $1,631.35, as well as a mandate to turn over all of the public records requested. The judge also requested that Cimino, who was representing Clayton resident David Burnett at the time, receive certification that the documents requested were present.

"It's unfortunate that it took 3 1/2 years for my client to get records which he should have received in a matter of days," said Cimino. "It's not so much a win for Mr. Burnett as it is for all the residents of Gloucester County."

The county's argument is as follows: The county told the court it did everything it could to obtain the records, but not every file requested was in the county's possession. Some of the files were held by its insurance carriers. The county was adamant that it was not withholding any records. "Those are documents we don't have or wouldn't have," said county administrator Chad Bruner. "It's very disheartening that the courts would award (Cimino) based on these things that are not in my control ... The county wasn't hiding public records."

Bruner, willing to fight the ruling and knowing the county did not falter in this particular situation, realizes that an appeal could cost a lot of money and the decision may never even be reversed. The county already spent $60,000 - $80,000 in legal fees to fight the case. "It would probably cost up to $50,000 to appeal," Bruner said, "and there's not going to be any guarantees. It's not going to be a slam dunk either way." The counsel of attorneys on staff with the county advised against the appeal process.

A valid question was raised, "Why did the county resist Cimino's records after he filed the lawsuit?" Assistant county counsel Tony Fiola added that the county was acting in accordance with prior OPRA case law. These laws stated that records located outside of the county, were not their responsibility. "OPRA law is basically a moving target all the time," Fiola said. "What the law was today may not be what the law is tomorrow."

Despite the statements, Cimino accused the county of being "ethically challenged". "The message should be loud and clear at this point that the public's business should be done in public," said Cimino. "Now they've been put on notice."