Journalism by Subpoena

January 21, 2014

The possibility that lane closures on the George Washington Bridge were political retribution surfaced as early as Sept. 13, when the Record’s John Cichowski first broke the story. Fort Lee Mayor Mark Sokolich suggested it at the time: “I’m beginning to wonder if there’s something I did wrong. Am I being sent some sort of message?”

Indeed, he was. The smoking gun made its appearance on Wed. Jan. 8 when the world first saw the now-infamous correspondence between Christie’s deputy chief of staff, Bridget Ann Kelly, and David Wildstein, a Christie appointee to the Port Authority. Since then, the story has been at a steady boil — with questions about what Christie knew and when he knew it, whether there was a culture of retribution, and how this all affects Christie’s chances in 2016.

The Bergen Record published the Kelly-Wildstein correspondence first, followed in short order by The New York Times and everybody else. It would have been nice had the correspondence come to light as a result of the Record’s Dec. 17 Open Public Records Act request. Instead it surfaced because of subpoenas by the state assembly.

The governor’s office told the Record that it found “nothing responsive” in its Dec. 17 OPRA request — “nothing responsive” being OPRA jargon for “Sorry, wrong number.” And that has Jennifer Borg, general counsel for The Record, furious.

It was “directly responsive,” Borg says. “Unfortunately, this OPRA violation is not an isolated incident.” She says the Record is planning to file a lawsuit against the office of the governor for OPRA violations, and is researching additional claims.

“A well-targeted OPRA request can reveal a lot of stuff,” says Marc Pfeiffer, Assistant Director at Bloustein Local Government Research Center and a New Jersey open records expert. “But subpoenas will do a better job.”

Luckily for the Record and news organizations throughout the state, the state assembly’s special investigative committee issued more 20 subpoenas this past Friday. As we’ve seen in the first two rounds of disclosures, subpoenas carry more weight with people wanting to hide things than mere press requests.

That doesn’t mean that journalists should just lay back and let legislators do their job for them.

The scandal is widening. On Saturday, Hoboken Mayor Dawn Zimmer told MSNBC Saturday that that the governor withheld Sandy aid because of her refusal to support a development plan by the Rockefeller Group to develop three blocks on the north end of town. Intriguingly, the law firm representing the Rockefeller Group is the law firm of Port Authority Chairman — and Christie appointee — David Samson.

Meanwhile, former NJN reporter Zack Fink has gone on record with the story that Christie shuttered NJN as a result of political payback for a story he reported in 2009 about a $46,000 loan the governor had made to a subordinate. That subordinate, by the way, was Michele Brown, later appointed as chief executive of the NJ Economic Development Authority — which approved the governor’s controversial “Stronger Than the Storm” campaign.

Ben Lesser, a former investigative reporter for the Record, who now works for the CUNY Research Foundation, thinks there’s plenty for journalists to do while we’re waiting for the subpoenaed documents — starting with asking mayors and county executive throughout the state, “Have you ever felt like you were being punished?”

With 565 municipal governments in New Jersey, that’s a tall order. More than the Record and its ilk can be expected to get to. Lesser says to hyperlocal publishers: “Don’t assume that the larger news organizations are going to have everything covered.”

We would add: If you’ve never done investigative reporting before, we can help. Lesser, who works as a consultant to the NJ News Commons, will help any journalist in the state come up with an action plan for probing local officials and documents in the service of investigative reporting. Just use this form to make a request. We also have an OPRA sherpa service to guide you through open records requests.

By the way, though public officials may try to hide behind private email accounts, those are also OPRA-able. And in fact, the use of private accounts is de facto a warning sign of something amiss. “Whenever a public official uses their email to conduct public business it opens the question as to why,” says Lesser.

But there’s not just a ton of work to be done individually. Journalists also have to work together to demand better open records compliance by state government.

In addition to what Borg describes as “numerous OPRA violations” by the governor’s office, it seems problematic that the Port Authority is not subject to OPRA — a position that has been upheld by the courts. Perhaps it is time to demand that Trenton and Albany bring the Port Authority under state transparency statutes. Meanwhile, the idea that Christie’s decision to close NJN might have been an act of political spite should put a collective chill down the spines of journalists in the Garden State.

Open records — and open government — don’t just happen. There’s a natural inclination in governments to huddle closely. It takes a strong and organized press to demand sunlight.

This is one of the core missions of the the NJ News Commons. Together with Hack Jersey and a dedicated group of volunteers, both in the press and in government, we have begun an open data initiative to insist on the openness and transparency of government data in New Jersey.

We will be holding a conference on Monday, May 12 at Montclair State to showcase successful transparency efforts in other states, make recommendations to local and state officials and demonstrate new technologies to help local officials bring their data collection and distribution into the 21st century. Please mark your calendars and plan to join us. Sign up for the Hack Jersey or NJ News Commons mailing lists to stay abreast of our work, or reach out to me to join the planning group behind the transparency effort.

The New Jersey press is onto a big story, and it’s in our DNA as journalists to want to get there first. But the story is bigger than any one news organization. The test of our news ecosystem — much battered by the economics of the news business — is not who gets there first, but whether we’ve gotten to all the nooks and crannies of the story. And whether we’ve demanded, and achieved, the government transparency the people of New Jersey deserve.

Debbie Galant is director of the NJ News Commons, a project of the School of the Communication and Media at Montclair State University. It resides within the Center for Cooperative Media and is funded, in part, by contributions of the Geraldine R. Dodge Foundation.