Judge tosses Cherry Hill schools’ lawsuit targeting records requester

A Superior Court judge has tossed the Cherry Hill school board’s lawsuit against a records requester it claimed had harassed them by submitting an average of one records request per month over 18 months.

Judge Michael Mikulski dismissed the suit, which sought to bar Benjamin Shore and his journalistic outlet, Shore Investigates, from submitting requests for public documents for one year, with Mikulski citing a New Jersey law aimed at barring lawsuits meant to censor or chill political speech.

“Plaintiffs have shown no evidence of any ill-intent of Defendants here. In fact, the record reflects defendants’ willingness to cooperate with the board in making the requests less intrusive,” Mikulski wrote in the seven-page ruling.

New Jersey’s Uniform Public Expression Protection Act allows judges to dismiss lawsuits meant to chill speech or political engagement on an expedited basis. The court must award attorney’s fees and costs to the defendant if a suit is dismissed under the law.

The court found Shore’s request to toss the case as a strategic lawsuit against public participation met all three required bars.

“This is the right outcome. No public agency should sue anyone, let alone reporters, because they file an OPRA request or two a month,” said CJ Griffin, an attorney specializing in public records who represented Shore. “Public records belong to the public and no one should live in fear that they will be sued for seeking basic transparency.”

Griffin has represented the New Jersey Monitor in a range of legal matters.

Because Shore was acting in a journalistic capacity, the case centered on a matter of public concern, the judge wrote, satisfying the first prong, while the second prong was automatically met because he did not work for the government. He said the third prong was met because the school board submitted no evidence to support its claim that Shore filed Open Public Records Act requests with the goal of burdening or harassing board staff.

“Here, the intent is the dispositive factor, which the court finds none in the evidence presented,” Mikulski wrote. “The court finds the amount of time the board must expend in order to respond to the requestor OPRA requests is not a valid reason for its action.”

The judge further dismissed claims that a website Shore set up to assist with filing records requests with the Cherry Hill Board of Education could mislead residents into believing the site belonged to the district.

No facts backed up that assertion either, the judge said, noting the website was noncommercial and included at least two disclaimers that said it was not affiliated with the school district.