2. On November 23, 2003 plaintiff filed a complaint with the Government Records Council claiming that officials of the Borough of Mendham obstructed his access to public information in violation of the Open Public Records Act. -- Months later the GRC decided that this litigation denied them jurisdiction over the claims, and dismissed (over my objection) my complaint in deference to a presumption that this court would assume jurisdiction.

3. Since the Open Public Records Act became law plaintiff:

a) Has been required to use an approved document request form.

b) Has been required to make all document requests in writing.

c) Has been overtly deceived regarding the very existence of publicly accessible records held by the Borough of Mendham.

d) Has been required to clairvoyantly ascertain what documents have been received or processed by the Borough of Mendham.

e) Has not been permitted access to documents in the medium requested, and has been obligated to except documents in an inferior (sometimes completely destructive to legibility) medium.

f) Has been charged fees in excess of actual cost of production.

g) Has been obligated to repeatedly take aggressive action to stop the Borough of Mendham from passing ordnances that overtly violate the Open Public Records Act.

h) Has had requests for ADA accommodations ignored.

i) Has had direct questions regarding the existence and processing of documents ignored.

j) Has had to engage in extensive "legalistic" argument to secure access to very basic public information.

k) Has had his right to engage in legal enterprise, and his right to "speak" with informed authority substantially degraded by obstructions to access perpetrated by the Borough of Mendham.

a) From 1999 through 2004 to Borough of Mendham has claimed an inability to electronically scan paper documents.

b) The Borough has claimed a right and need to "outsource" (at the requestors expense) very basic clerical duties (the copying of documents).

c) In 2004 alone, the Borough of Mendham spent no-less-than $30,000 on computer hardware and services.

d) From 1999 to present the Borough of Mendham has required many document requests to be more "specific" than reasonable practicality permits.

e) From 2003 to present the Borough of Mendham has claimed a right under the OPRA to provide copies of electronic data in only one (proprietary software) media format. (In essence a right to reject any or all requests for "conversion".)

f) An ordinance to be introduced March 7th the Borough of Mendham claims a right to charge the "not to exceed maximum" fee for paper-to-paper copies for the conversion of paper documents into an electronic format.

Date:   	-------------------------------------------

Through this motion I would like to separate for judicial decision by this court the non-jury issues of my claims that:
1) The Open Public Records Act as currently defined by interpretation of the courts and the GRC is unconstitutionally vague as it violates the constitutional obligations of due and equal process.

2) The officials of The Borough of Mendham have committed repeated, and I claim willful, violations of the Open Public Records Act.

As successful prosecution of my first claim of "unconstitutionality" would negate the practical worth of meticulously itemizing and arguing the circumstantial facts of the various claimed OPRA violations -- I request the Court's indulgence to permit the separation of this motion into two distinct phases. The first phase would, in essence, establish the necessity of the second phase. In the hope that this is an agreeable arrangement, I will narrow the argument provided in this first written filing to issues relevant to a claim of unconstitutionality.

Anticipating that other parties would have an interest in adjoining an opinion on this motion, I have sent a copy of this filing to the office of the Attorney General.

Consistent with the indulgence requested above, I request that the Court find that: The Open Public Records Act is unconstitutionally vague legislation. I further request that the Court exercise its latitude to either-- provide a more explicit definition of what the law means and what rights and responsibilities it imposes consistent with constitutionality and legislative intent-- or to order the Legislature to better perfect their constitutionally deficient legislation.

Generally speaking the courts have imposed a reasonable standard that doesn't require legislation to be perfect, but does obligate it not to be substantially imperfect (unfair) if the imperfection is easily corrected. It is my contention, and I think the facts demonstrate, that the OPRA is "bad" legislation, in that it is made counterproductive to its intended purpose by egregious omissions and flaws. It is also my contention that the legislation can be easily repaired by augmenting some of the incomprehensible language with some more concise and explicit guidance regarding intentions and underlying principles.

In use, the structure of the OPRA legislation breaks down precipitously as bureaucratic intent drifts further from a good-faith effort at compliance. Contradictions, imprecise verbiage, and weak penalties provide abundant opportunities for abuse and obfuscation. Consistent with the wisdom in the old saying "a little knowledge can be a dangerous thing," I think the OPRA demonstrates "that a sloppy little bit of law isn't necessarily better than no law at all."

A brief overview of the problems enlarged or created by this legislation.

In reviewing most of the cases "decided" by the GRC, I think it can be fairly said that the organization has shown few teeth in its enforcement of the law. Although most document requestors have had their right to the information requested "vindicated" by the GRC, that vindication hasn't produced any action (punishment or legal clarification) that would help secure that right from repeated future violations. In practical effect, decisions/mediations of the GRC are probably more effectively deterring document requestors from attempting to defend their rights than they are "deterring" municipalities from obstructing access.

Especially in cases where the information to which access was denied is time sensitive (of decaying value over time) the GRC has demonstrated that a document requestor has little hope of securing any benefit (for self or society) to compensate for the time, expense, and aggravation required to file a complaint with the GRC. Securing documents three, six, or nine months after they were requested is scant reward for the cost[s] of legal conflict.

Although the OPRA legislation states that it does not intend to replace or undermine existing common-law protections--in practical effect that seems unavoidable. By establishing "guidelines" (regardless of incomprehensibility) the legislation provides a measure of protection from liability for a whole range of malicious behavior that can be now easily veiled to mimic "good-faith" compliance. In brief, it is my contention, and I believe my experience, and records of the GRC demonstrate, that the Open Public Records Act does little more than create a obscuring and confusing smoke that only aids those seeking to act contrary to stated legislative intent .

The specific flaws that, in total, render the legislation catastrophic to its stated intention:

Regarding Penalties:

As referenced earlier, I would argue that the inadequate, disproportionate and therefore unconstitutional penalties established by the Open Public Records Act substantially compromise the potential of the legislation to satisfy its intended purpose. The legislation does not seem to appreciate that a "bad faith" violation of the OPRA is, in practical truth, a violation of fundamental constitutional rights (the right to publish and speak is substantially compromised without a protected right to know) and a violation of a custodian's sacred oath to defend the Constitution. In the context of municipal budgets and salaries, even the maximum THIRD offense penalty of $5,000 has little relevance as a deserved punishment or deterrent --and I think quite obviously the $1,000 first offense penalty constitutes a mockery of justice. Generally speaking, few people would defend a legal circumstance that required a victim to incur more costs to prosecute a crime, than justice imposed as penalty for committing the crime. Yet, it is my claim that in actual relative terms, this is, in fact, the circumstance created by the weak penalties provided in the OPRA and weak enforcement by the GRC.

In the two-and-one-half year history of the legislation, I believe only one custodian has received a first offense penalty. Considering the fact that few cases resolved by the GRC have included any finding that a custodian acted in compliance with the law by obstructing or denying access, the message seems clear: If you are a custodian seeking to skirt the law, you may do so freely, as long as you can obscure intent behind an easily contrived facade of ignorance, incompetence or confusion. Perhaps correctly, the GRC has been reluctant in deciding issues of "intent"-- but the law should appreciate, that to have much hope of successfully prosecuting a claim of "bad faith" noncompliance, a requestor would likely have to secure professional legal advice and assistance and pay court costs that may not be recoverable. Measured against the minor victory of securing the imposition of a $1,000 fine on a multimillion-dollar municipality, justice is not likely to be served following the blueprint of the OPRA.

By its very nature, access involves an expenditure of time and/or materials. When borne by the person seeking access, "the cost of access" can be fairly described as an obstacle or impediment to access. One of the questions I put to this Court is: Does it satisfy constitutional principles to apportion access to publicly held information through application of what is, in effect, a "means test"? I would argue that answer is certainly no, if the alternative of free (or minimum fee) access is a practical alternative.

In addressing fees, the language of the Open Public Records Act is convoluted beyond common consistent decipherability. A strict reading of the first paragraph of section b seems to imply a right of a municipality to charge more than actual cost as long as they do so through ordinance and keep their (hard copy) fees below the defined maximums. I would claim that the Constitution prohibits any fee above actual cost, as any extra or unnecessary added fee would, by its very nature, create a discriminatory class barrier to the fundamental right of access--which protected constitutional rights have no meaningful reality without.

I request of the Court that it codify a more reasonable, constitutionally acceptable interpretation of this paragraph (and the overall legislation) and establish that it is a requirement of law that all fees charged be assessed-- not in excess of-- a reasonable approximation of actual incurred costs of production.

I do not believe that any rational argument can be contrived to fairly persuade the court that such a clarification/declaration could do any harm to any legitimate function of any government or its agents. By contrast, the constitutional logic of eliminating an easy opportunity to manipulate and exploit those seeking to exercise a fundamental right, whether for discretionary profit or to effect some discriminatory oppression, is too clear to be denied consistent with your duty to the people, the truth, and the Constitution.

For example:

• The legislation doesn't establish who gets to define what constitutes "some other meaningful medium."
• The legislation doesn't address a custodian's right to (maliciously) destroy documents in one medium to, in turn, force a requestor to accept documents in another ( less sufficient to their purpose) medium.
• The legislation does not address any obligation of a custodian to reveal what medium the document is (or was) available in.
• The legislation doesn't address the custodians' obligation to reveal their technical knowledge or capacities or their previous performance applying those skills. ...

In brief, a great flaw in the legislation, that allows for the hiding of much mischief, can be easily corrected by expanding the legislation to include a couple of explicit affirmations of common law expectations. I request that the court affirm:

• That where it imposes no extra burden, issues of discretion or variable means or methods shall be decided by the person making the document request.
• That all custodians are required to have the technical facility to produce documents in common formats and be able to transmit them through commonly used means (i.e. E-mail, internet, etc.).
• That it is, in fact, a violation of law for a custodian or official to deliberately organize a technology system with the intention to obstruct appropriate public access to the files created or retained.
• That custodians do have an obligation to answer relevant questions regarding available technical capabilities/options honestly and completely.

Other issues of "rights and responsibilities" that require clarification if the legislation is to satisfy, to a minimum standard, the stated legislative intent.

a) The provisions of the OPRA provide inadequate protection against Catch-22 word games being used to improperly deny access. The OPRA and the GRC give little useful guidance in defining a "valid" (sufficiently specific) document request. The GRC has stated that "The Custodian is proper in requiring clarification when a request is too broad in scope and a reasonable basis exists to seek said clarification," but it has made no statement defending a requestor's right to the information required to provide "clarification". Without a protected right to know what documents are available, there can be no protected right to access. Custodians must be obligated by law to at least acknowledge, when directly asked, basic facts regarding what public information they retain and on what media.

b) The legislation makes no appropriate provisions accommodating--or even recognizing-- that document requests are made by very different interested parties to fulfill very different purposes. The imperfect construction of the OPRA and its incompatibility with many "practical" realities is made very obvious when one examines the Section f "adopt a form for the use" provisions. The GRC has (I believe rightly) conceded that "the form" can create problems destructive to the legislation's intent ...and that it would, as a requirement, create a contradiction in the law.

While it is helpful that the GRC has established that the use of the form is an option-- not a requirement--the GRC hasn't done much else to compensate for the lack of understanding made apparent in many provisions of the Open Public Records Act. If the legislation truly intends to make the information more accessible, it needs to appreciate that a substantial portion of document requests are going to be made by publishers and watchdog organizations. There needs to be appreciation and recognition in the law that many document requests are likely to be made by these public service organizations who are going to be serving the "good purpose" of making the information more accessible. The law needs to recognize that individuals making routinely regular or extensive document requests should not be burdened or obstructed by the inefficiencies of pointlessly formal or taxing (unnecessarily expensive) process. It seems only logical that the law provide some "efficiency reward" to requestors who are likely to make the public information they receive more accessible to the public.

c) A last specific omission in the law I would like to reference is the absence of any statement making it clear that state and federal legislation that requires that reasonable accommodations be made to compensate for the impairments of disability are applicable to the circumstance of accessibility to public information... and that consistent with the intentions of the OPRA, any violations of those laws regarding an issue relevant to accessibility to public information will be considered a violation of the Open Public Records Act as well.

I believe a fair review by the court of the Open Public Records Act, the [in]actions of the GRC, and the e-mail history I've provided documenting my efforts to secure public information held by the Borough of Mendham, will logically lead the court to the conclusion that the OPRA is ineffective legislation that can be destructive to its stated intention. I request that the court act on that conclusion and repair the legislation or appropriately declare the legislation unconstitutional and in effect require the Legislature to provide law that can be enforced consistent with constitutional principles, and that is capable of securing results consistent with its intention.

I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.

Gary Mosher