Lacey Township is on the cusp of a groundbreaking move, but it's one that's raising eyebrows and concerns among its residents. The township is gearing up to be the first municipality in the state to embark on a "public-private" partnership deal with Johnson Controls for the construction of a new combined municipal complex and police station. While such partnerships can offer innovative solutions and potential cost savings, this particular arrangement has been met with significant resistance. At the heart of the opposition is a profound concern about transparency, or the lack thereof, in the deal-making process. And a controversial contractual clause hidden in the deal allows Johnson Controls to bring a lawsuit against OPRA requestors to stop the release of information about the project.
The New Jersey State Legislature, in crafting OPRA and enshrining it in N.J.S.A 47:1A-6, was unequivocal: only the individual or entity requesting public records has the right to challenge a denial of access in court. This principle was further solidified by the Supreme Court of New Jersey in its ruling In the Matter of NJ Firemen’s Association, 230 N.J. 258, 271 (2017) where it was clearly stated that “OPRA prohibits record custodians from instituting OPRA suits, a right exclusively reserved for requestors.” See also N. Jersey Media Grp., Inc. v. Bergen County Prosecutor’s Office, No. BER-L-6741, 2013 N.J. Super. Unpub. LEXIS 2766, at *23 (Law Div. Nov. 15, 2013)( “The [OPRA] statute explicitly affords th[at] right to the requestor . . . , not to the government.”)
However, the contract drafted between Lacey Township and Johnson Controls contains language that seems to sidestep these foundational legal tenets. By potentially allowing Johnson Controls to intervene and even challenge the release of public records, the contract not only undermines the spirit of OPRA but also poses a direct threat to its very essence. This isn't a mere contractual oversight; it's a full frontal assault on the principles of transparency, public access, and government accountability.
From the pre-development services agreement:
Lacey resident Gavin Rozzi, the mind behind OPRAmachine and a tireless champion for government transparency, has meticulously examined the intricacies of this partnership. His findings are not just alarming but seem to directly challenge the foundational principles of the New Jersey Open Public Records Act (OPRA). Rozzi didn't mince words in his assessment in a recent Jersey Shore Online article, stating, “The language in the pre-development services agreement is egregious, appalling, and unconscionable. It appears to sign away the Township’s solemn obligation under OPRA to a private for-profit company. This isn't just at odds with public policy; it's a blatant violation of the statute's clear language.”
Given this clear legal framework, the clause in Lacey's agreement with Johnson Controls is not only concerning but appears to be in direct violation of established law. By potentially allowing Johnson Controls to intervene and challenge the release of public records, the agreement undermines the very essence of OPRA and the principles of transparency it upholds.
The implications of this are far-reaching. If such contractual language is allowed to stand, it could set a dangerous precedent, eroding the public's right to access information and undermining the checks and balances that OPRA was designed to ensure. As Lacey Township moves closer to sealing this historic deal, the ramifications extend beyond its borders. This is a clarion call for vigilance, not just for the residents of Lacey Township but for all who believe in the principles of open governance and the public's right to know.
As Lacey Township edges closer to finalizing this historic deal, the stakes are high. The principles enshrined in OPRA, which ensure government accountability and foster public trust, are under threat. It's a situation that demands vigilance from Lacey Township residents and all proponents of transparent governance.