Irvington, New Jersey, just can’t help itself. First, it tried to sue an elderly woman for filing too many public records requests, and now it’s suggesting that a lawyer for the Foundation for Individual Rights and Expression (FIRE) be criminally prosecuted for doing the same.
FIRE attorney Adam Steinbaugh detailed in a blog post yesterday how the Irvington city clerk recommended that he be prosecuted for perjury for submitting records requests under New Jersey’s Open Public Records Act (OPRA).
One would think the town would have learned its lesson. Irvington made national headlines last March after it filed a lawsuit accusing 82-year-old Elouise McDaniel of bullying, harassing, and defaming officials, in part because she had filed more than 75 public records requests for township information over a three-year period.
It also sent two cease-and-desist letters to a local New York news outlet NBC4 after the outlet’s investigative team started poking around the story, similarly accusing it of harassment and of aiding McDaniel, whom it described as a political adversary of the mayor.
After the story went viral and several very competent lawyers announced they would represent McDaniel, the town dropped the lawsuit. Unsurprisingly, no Irvington official wanted to take credit for the debacle. The mayor said he had never seen the lawsuit, and the city clerk, Harold Wiener, said he’d never requested it.
Lawsuits don’t magically appear and walk themselves down to the courthouse, though. Steinbaugh filed OPRA requests seeking invoices, retainers, and other documents that could shed light on who initiated the litigation.
After Irvington failed to respond to Steinbaugh’s records requests, he filed two complaints with the New Jersey Government Records Council, which adjudicates OPRA disputes.
Wiener’s response to the council argued that OPRA requests are only available to state residents, and that it was not obligated to respond to Steinbaugh, who is in Pennsylvania. This is incorrect. As Steinbaugh notes, there are a few states that limit records requests to residents—Virginia and Tennessee, for instance—but New Jersey is not one of them. The council’s guide to the OPRA says, “the Attorney General’s Office advises that OPRA does not prohibit access to residents of other states.”
But then Wiener’s response takes a bizarre turn. He says that Steinbaugh should be prosecuted: “Accordingly, the instant Complaint and all future Complaints filed by the Requestor must be dismissed on their face and/or Requestor’s perjury must be reported to law enforcement for prosecution under [New Jersey’s perjury statute]. The Township should also be absolved from responding to any of Requestor’s OPRA requests.”
The response doesn’t make sense to Steinbaugh.
“Either Irvington thinks I’m falsely claiming to be a citizen of New Jersey and should go to jail, or they’re suggesting that I am a New Jersey citizen who is so embarrassed that I’d rather perjure myself than admit it,” he says. “But it doesn’t matter—anyone can request records. I could be a citizen of the moon. Irvington just doesn’t want to turn over records.”
Over the past several years, city and state agencies have started filing what are known as “reverse FOIA” lawsuits against public records requesters, asking a court to block disclosure and forcing the requester to defend his right to access public records. But Irvington’s actions—suing requesters, threatening news outlets, and accusing anyone who tries to get a closer look at its business of bullying—are hypersensitive, even by the standards of other peevish and ill-informed small-town governments.
There’s a bully in this story, and it’s not Steinbaugh, McDaniel, or the news outlets writing about Irvington.
Wiener did not immediately respond to a request for comment.