NEWARK, NJ - A Superior Court judge has ordered the city to hand over severely late documents that were requested under the Open Public Records Act (OPRA) by the group that is suing Newark over the lead issue with water.
Superior Court Judge Bridget Stecher on April 26 ordered the city to hand over all outstanding documents within 30 days to the Natural Resources Defense Council (NRDC). The environmental advocacy group is also suing city and state officials in federal court, alleging they violated regulations that caused lead levels to rise in Newark.
Under the state’s OPRA law, public documents must generally be handed over to a requestor within seven business days. CJ Griffin, an attorney representing the NRDC in Superior Court, claimed some parts of the group’s OPRA requests were overdue by more than nine months.
The city argued the NRDC was already in possession of the “vast majority” of the documents it requested as part of discovery in the federal suit. The city claimed it already handed over thousands of documents in response to the NRDC's three separate OPRA requests that spanned 43 different categories.
“The time spent by City personnel completing searches that have already been completed to uncover documents that have already been produced and which are already in NRDC’s possession is time staff is not spending distributing free water filters or brainstorming the safest ways to fix the lead issues,” city attorneys wrote in court filings.
The NRDC’s first of three OPRA requests, in this case, were filed in July 2018. The documents that were requested included the city's updated lead service line replacement schedule and emails between city and state officials about the water.
“The fact that some records might eventually be produced in discovery in the federal litigation did not absolve Newark of its obligations to comply with NRDC’s OPRA requests in accordance with timelines set by the Legislature,” Griffin, NRDC's attorney in Superior Court, wrote.
This isn’t the first time the NRDC has sued the city over OPRA though.
The group sued the city in April 2018 in Superior Court, about two months before it officially filed its separate federal suit. The disputed OPRA requests, in that case, were sent by the NRDC as early as August 2017. In that OPRA lawsuit, it took two enforcement orders from the court before the city fulfilled the records requests.
The city was ordered to pay more than $3,000 in attorneys fees and litigation costs in that lawsuit.
City attorneys also asked the judge to not allow the NRDC to file any more OPRA requests with Newark until its federal litigation ends. The judge denied that motion.
"The Department of Water and Sewer Utilities staff has been inundated with NRDC’s voluminous requests for documents in the NRDC federal lawsuit and those documents totaling thousands of pages were provided as part of the discovery process," city spokesman Frank Baraff said. "The documents requested under OPRA total thousands of pages more and require taking Departmental staff off their other duties in order to comply."
Emails that were included in the NRDC’s federal lawsuit have shown some telling revelations about the city's response to increased lead levels. A consultant hired by the city warned water department officials in early 2018 that the treatment of the water was likely the cause of elevated lead levels, court records showed.
The city didn’t start handing out lead filters until late 2018. Between the time of that email and the distribution of lead filters, the city had told residents that the water was “absolutely safe to drink.”
“It’s critical that the public be informed, especially in the time of a crisis about what’s going on in their water supply and what risks might be to them,” NRDC Senior Director of Health and Food Erik Olson told TAPinto Newark.
Baraff, the city spokesman, said the city does not plan to appeal the judge's decision in the OPRA case and is doing "everything possible" to comply with the order.