Livingston's Experience with the Open Public Records Act Reveals the Act's Virtues and Limitations

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Glenn Turtletaub and Rudy Fernandez
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LIVINGSTON, NJ - The Open Public Records Act (OPRA) was signed into law in 2002, making government more transparent by allowing citizens to see records of governmental activities, such as records of budgets, contracts, and meeting minutes. In Livingston, the desire to provide governmental transparency seems to be clashing with the need to provide services to the town as a whole. While everyone agrees that the free and unencumbered sharing of information and the right to question elected officials is fundamental and imperative, these simple truths become problematic when adhering to them starts to hinder other citizens.

Larry Kohn is a citizen of Livingston for the past 38 years, and he has made numerous requests for information under OPRA. There are some who find his inquiries excessive.

"Livingston Council is a very transparent council and has nothing to hide, but Mr. Kohn abuses the OPRA process when he puts in 30 requests a week," said town attorney Shari Weiner. "It takes time for us to assemble the documents that he's looking for. He, as an individual, is really creating a time problem for the employees of the town, who must respond [to his requests] within 7 days [as the legislation stipulates]. The town had to hire an additional clerk to handle Mr. Kohn's OPRA requests."

Renee Resky has been an administrative assistant for the township for five years, and she has been handling the majority of Kohn's inquiries. "He has asked over 275 questions since 2007," she explained. "Most requests are from people buying a home or selling a home, maybe 1 or 2 questions. We're not hiding anything, but it is more than the average person and it takes time and money."

"The council and the town is open and is certainly willing to comply with the spirit of OPRA but we feel that Mr. Kohn has abused it by the volume of his requests on a weekly basis," Weiner concluded.

Rudy Fernandez, a member of the town council since 2008 who was elected Deputy Mayor of the town council in January, corroborates Weiner's statements. "We fully support his right to inspect and copy public records," he stated.

For his part, Kohn said, "[The council] can't deny my right of access but they're certainly not excited about it and they have repeatedly exaggerated the cost that they've incurred."

Fernandez agrees that the financial cost, rather than fact-finding, is the root of the issue. "It's the volume of Mr. Kohn's requests and his appeals to the Government Records Council [the body that oversees matters related to the Open Public Records Act] that has caused the town to expend substantial amounts of taxpayer money, not just for attorney fees…but also salaries for employee time fulfilling those requests," he said via e-mail.

Weiner, who has held her position as the town attorney for eight years, estimated that she has spent hours that bill an estimated total of $30,000 for her time spent reviewing Mr. Kohn's requests in 2009 alone. Since one of her jobs is to defend the town against complaints to the Government Records Council (GRC), Weiner also has been paid over $16,000 between 2007 and 2009 for representing Livingston against Kohn's complaints against the township to the GRC. She says that the town has never been at fault in any of the cases for which she was retained as council, which number about six.

In addition to being costly for Livingston, Weiner feels that the influx of OPRA requests also takes up a disproportionate amount of time, which harms both town employees and residents. "My work [at Scarinci & Hollenbeck] has suffered because of this," she said. "There's no question that the services supplied to the residents of Livingston have been adversely affected by Mr. Kohn's actions."

Kohn thinks the actual cost of his inquiries - in terms of both time and money - have been inflated, citing an OPRA request he made to look into just how much he was costing the town. "I was told it costs the town between $25,000 and $50,000 to comply [with] my OPRA requests, so I made one [an OPRA request] to check the validity of that claim and it doesn't exist."

Kohn also disagrees that his requests are overly frequent. "My OPRA requests represent a small fraction, clearly less than 50% of all OPRA requests," he said. "As a single individual, I perhaps make the most requests. Others come from other citizens, contractors, and the like."

Perhaps the dispute over how many requests Kohn has made is simply a matter of how one chooses to look at the data. Kohn may be counting by the actual number of physical OPRA request documents he sends in, but others might be looking at the amount of information requested in each document. Often, one document contains multiple questions and the answers are from a variety of sources. According to the website for the Government Records Council, "a requester must determine which records he or she wishes to see or copy, and then determine which public agency holds them. OPRA applies to requests for records, not requests for isolated facts."

Both sides agree that some questions are asked more than once, but they have different explanations for why. For example, Fernandez suggested that perhaps Kohn didn't like the original answer and was hoping for a different result by asking again. Kohn says that he has to ask the same questions periodically because the records change. "When you're trying to figure out how much has been spent, there's a bill of particulars, but it's an ongoing process so the document changes and I'm merely getting an update," he explained.

Another issue is that people aren't sure what happens after Mr. Kohn's requests are answered. "Once he gets the information it doesn't appear that anything happens with it," Fernandez said.

While there are those who take a more suspicious view of his actions - one source said Kohn might be "running a shadow government" - Larry contends that he's simply an informed citizen of the town. "I'm challenging [the council members'] thought processes and how they've approached some of these kinds of issues," he said. "My motivation and my success is to get the elected officials to do their job better. I've not asked a single question that the elected officials shouldn't have asked themselves. I'm trying to make them better or be more responsible. I think it's all constructive, it's intended to be constructive."

Resky agrees with the more benevolent view of the situation, saying, "In his mind he has good intentions."

Kohn and the council members also have different views on a variety of other points of contention. For example, Fernandez feels that Kohn points out possible problems, but has no interest in being part of the solution. "He was very vocal about how town hall should be built and we asked him to be on the committee for the design, so he went to two meetings and then quit," the councilman stated. He also mentioned that Kohn had applied to be on the budget advisory committee, but withdrew his application before it could be approved.

Kohn sees these instances differently. Although he admits that he was a member of a committee for the conceptual analysis of the municipal police building, he disagrees that his departure from that group was due to not wanting to put the work in. "I recognized the mismanagement of those projects, and while I thought my involvement would be interesting and useful, I didn't want to be associated with that sort of mismanagement," he said.

His feelings on the budget advisory committee are similar. "When the 2009 budget was approved, I asked for the minutes of that committee, to see what they did provide. There were no minutes, there were no recommendations that they brought to the table. I questioned the effectiveness and the purpose of that committee so I withdrew my application. I didn't have a clear understanding of the responsibilities of that committee," he explained.

Although there are individuals who don't see any method to his requests, Kohn explains that he does try to focus his questions on financial information. "I have tried to concentrate on areas that involve fiscal matters," he said.

While the council members may not agree that Larry has an area of focus for his inquiries, this concentration on finances makes sense for a man who has his Master's degree in governmental administration from Wharton. Kohn's experience is not limited to the theory of academia. He has worked as an administrator's assistant and as an administrator for Woodbridge and Englewood, respectively. He has also had experience as a finance organizer at the Health and Hospital Corporation.

Financial questions and concerns have also been raised in writing. Kohn has written letters to individual council members as well as letters to the editor of Livingston's weekly town paper. Fernandez says that the council and the town have responded appropriately. "We respond to him at council meetings, the mayor has written to him, and we've all met with him," he said. "It's not worth the time to always point out when he's wrong."

Yet both Fernandez and Resky maintain that Larry may not be wrong, just mistaken. "He reads between the lines to suit his facts," Fernandez said.

Resky agrees. "He interprets law[s] differently than they're intended," she explained.

Yet, Kohn and the town are not always at odds. "I'm confident that they've heard my ideas, my suggestions, and I'm confident that they've implemented some of them," Kohn said. Larry says that he feels responsible for pushing the issue of refinancing bonds and saving the town over $100,000. Another victory, according to Kohn, relates to the construction on the police building. "When the municipal police building was being considered for reconstruction, the initial design was to have it be done in stages. My position was very clear: you will inconvenience the public and the employees if you left them in a construction site and if you build it all at once, you'll shorten the time frame and save money," he stated. "They claim that the decision to build it all at once saved them 1 million dollars."

Kohn says that other successes include his idea to have volunteers rather than employees for Livingston High School's Project Graduation, closing the town-run preschool, and having the council include the full text of a resolution on their website. For Larry, these triumphs are worth the work of OPRA requests and the annoyance of the council members. "As big an irritant as I may be or have been over a period of time, the successes have been considerable," he said. "In almost all cases, when I raise an issue, I don't shoot from the hip. I don't try to put them in a 'gotcha' situation where I set them up. I've done some research."

Township Clerk Glenn Turtletaub, however, has raised an interesting point of his own. "If you make 1000 requests and have one good idea, it gets lost," he said.

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