Private Prison Contractor Not Subject to New Jersey’s Open Records Act

On October 12, 2012, a New Jersey state superior court held that Community Education Centers (CEC), a private prison contractor, was not required to disclose its records under the state’s Open Public Records Act (OPRA), N.J.S.A. § 47:1A-1 to -13. The decision was affirmed on appeal.

CEC operates Delaney Hall, a prison-like facility, for Essex County. The company contracts with Education and Health Centers of America (EHCA), a private non-profit entity, and EHCA contracts separately with the county to manage the facility.

John Paff filed an application in state court to require CEC to comply with his OPRA request for disclosure of records, including attorney billing records and personnel files for three CEC employees. The company opposed his request, arguing it was not subject to OPRA because it was not a “public entity.”

The court held that records subject to OPRA are limited to those kept or filed by any officer, commission, agency or authority of the state or political subdivision thereof in the course of the government’s official business. “OPRA defines ‘public agency’ to include ‘any of the principal departments in the Executive Branch of the State Government ... and any independent State authority, commission, instrumentality or agency.’” Thus, under the plain language of the statute, CEC’s records were not subject to OPRA.

Paff contended, however, that OPRA “applies to taxpayer-funded, governmental activities regardless of whether they are carried out by a public or private entity.” He argued New Jersey should apply a governmental function test for its application of OPRA – a test that has been adopted for public records laws in other states. [See, e.g.: PLN, June 2013, p.14; Oct. 2008, p.24].

The superior court held that although the New Jersey Supreme Court had implicitly used governmental function language in Sussex Commons Associates, LLC v. Rutgers, 210 N.J. 531 (N.J. 2012), absent a direct finding that the state had adopted a governmental function test, it must continue to abide by the creation test under which only entities created by a political subdivision of the government are subject to OPRA.

Consequently, Paff’s application was denied. See: Paff v. Community Education Centers, Essex County Superior Court (NJ), Docket No. ESX-L-1658-12.

Paff appealed and the Appellate Division affirmed in an unpublished ruling in November 2013. The court found that “CEC was not created, nor is it controlled, by any governmental entity,” and thus was “not a ‘public agency’ under OPRA.” See: Paff v. Community Education Centers, 2013 N.J. Super. Unpub. LEXIS 2813 (App.Div. Nov. 21, 2013), cert. denied.

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