On June 21, 2016, Burlington County Superior Court Judge Ronald Bookbinder ordered Tabernacle Township to turn over the documents responsive to my November 1, 2014, Open Public Records Act (OPRA) request. Though marked “tentative,” the decision has become final.
Back in November 2014, I requested the Farmland Assessment application forms and the receipts that my neighbor submitted to the Township to get farmland assessment. I requested these because, having lived next door for over 21 years, I saw that the property wasn’t actively farmed. I doubted that the property qualified for the 98% tax reduction that’s given to land classified as QFarm.
I requested the documents under OPRA, the statute that controls a public agency’s disclosure of a government record. I also requested them under the common law right of access. Common law refers to the law that results from judicial rulings, not statute or regulation. Common law is the right that all citizens have to get public documents that concern their legitimate interests.
The Township denied my request because they said that the documents contained financial information that was exempt from disclosure. I pointed out that state law required property owners to have this information in order to show that they qualified for farmland assessment. I asked the Township to reconsider its decision; the Township did reconsider. It sent me the documents with all of the financial information redacted.
In a separate OPRA request, I asked for the assessor’s inspection records. By law, assessors are supposed to inspect all farmland assessed properties at least once every three years. Tabernacle’s assessor has no inspection records. TTJ readers may remember that a Tabernacle property, which has been the site of a cell tower since the early 1990s, was improperly assessed as farmland for over a decade, apparently with no farmland assessment inspections (see March 22, 2015 Post). The Township still hasn’t corrected the inspection problem to comply with state law.
Because the Township denied my request for the un-redacted farmland assessment documents, I filed suit in Superior Court for them. TTJ readers may remember my February 19, 2015 Post when I wrote about a special public report that Township Attorney Peter Lange gave about this lawsuit. I wrote:
In his report, Township Attorney Peter Lange explained that he was discussing Brooks v. Tabernacle in public session so that the public could understand the issues and because “the public should benefit from the unusual nuances of the suit.” So, under the guise of teaching us a lesson, Mr. Lange and the Committee presented an incomplete and inaccurate story.
Mr. Lange explained that there was no public purpose to my document request, and I had unnecessarily forced the Township to defend itself against what he described as my purposeless claims and the legitimate privacy interests of the property owner, who didn’t want the documents released. Mr. Lange repeated the “no public purpose” phrase 10 times so that no one would miss his point.
The fairness and integrity of property assessment is one of the most basic public issues. Property owners face it quarterly when they pay their taxes. They face it every day when the Committee spends their taxes.”
In Court, the judge easily saw the public purpose in my document request.
The record before the Court indicates that there may be legitimate issues with the QFarm assessment program and the concept of ‘Fake Farming.’ As a New Jersey taxpayer, Brooks plainly has a strong interest in the disclosure of this information (Decision, p. 36).
With the recognition of the public purpose, the rest of the case boiled down to a legal question of whether the documents were exempt from disclosure under OPRA. Mr. Lange made various arguments, which the Court rejected. He said that the information was exempt because it was a trade secret and proprietary commercial information. But he had no explanation of how or why this was so.
Nor could he explain how the property owner’s competitive position would have been hurt if the world knew how many flats of blueberries or barrels of cranberries he reported. Mr. Lange also said that the requested information was exempt because it concerned a “natural person.” But it was obvious from the documents that the information concerned either an estate or a business entity, not a human being.
The real concern in the case was privacy. Mr. Lange said that the Township has an obligation to safeguard a citizen’s personal information when the person reasonably expects the information to be kept private. I always thought it was hypocritical for him and Committee members to say this because they publicly released the personal check of the last treasurer of the now-dissolved Tabernacle Fire District without redacting her bank account number. This person is clearly a “natural person.”
In the OPRA case, the court considered seven established factors to determine if the privacy concern was justified. Only one factor, and part of another, favored non-disclosure.
The Court concluded that the documents should be provided under OPRA and the common law.
Because the Township wrongly withheld the documents, the Court also ordered that my attorney is entitled to reasonable attorney’s fees. The amount of those fees is currently being discussed by the Township Committee and my attorney.
One part of this case baffles me: Why did the Township spend so much time fighting to withhold these documents when the property owner himself didn’t care? We named Robert Brick as a defendant because it was his information that we sought. But he told the Court that he had no intention of participating in the case or defending his alleged privacy interest.
I understand that a township should be cautious about releasing information without giving the person who submitted the documents a real opportunity to be heard. But here, the property owner had many opportunities to be heard and chose not to get involved.
At the Court’s request, we notified the other co-executors of the estate. One was served and contacted us by telephone. The other refused service multiple times. Throughout the case, neither the property owner nor the Township disputed anything I said.
Long before the Judge’s ruling in June 2016, there was a point when the Township should have been satisfied that it met its obligation to safeguard the property owner’s information. That point occurred after the property owner received sufficient opportunity to get involved, but said he wouldn’t participate. This happened around May 2015. After that point, what was the Township fighting for?