Photo Credit. Atlantic County Civil Courthouse Atlantic City by LourdesCam Licensed under CC BY-ND 4.0. Changes made. Converted from TIF to JPEG

Today, August 27, 2013, the Appellate Division of the New Jersey Superior Court, in an unpublished decision, affirmed a trial court’s ruling that the Atlantic City Alliance, Inc. (ACA) was not a “public agency” that is subject to the Open Public Records Act (OPRA).  The case is captioned Paff v. Atlantic City Alliance, Inc. and Walter M. Luers of Clinton was my attorney.  The opinion is on-line here

In 2011, legislation was passed that sought to revive Atlantic City’s tourism and gaming industries.  A special “Atlantic City Tourism District” was established to be managed by the Casino Reinvestment Development Authority (CRDA). The legislation authorized, but did not require, the “majority of the casino licensees . . . whose investors have invested a minimum of $1 billion in Atlantic City” to form a private, non-profit corporation to “undertake a full scale, broad-based, five-year, marketing program” to promote Atlantic City tourism and gaming.  This private corporation, if the casinos elected to establish it, would join in a “public-private partnership” with the CRDA.  The partnership, funded by $30 million contributed by the casino members, would work together to promote tourism.  Five casinos opted to create ACA, which is the private, non-profit corporation that the legislation anticipated.

My view is and was that if the government establishes a legal framework that calls for the creation of a nominally private corporation that ends up doing tasks that would have been performed by a public agency had the private entity not been created, that private corporation, despite its “private” label, is a “public agency” under OPRA.  Otherwise, governments could avoid public scrutiny simply by contracting its functions out to private parties. 

My case against the ACA is one of several cases which have helped establish a better understanding of where the line is drawn between public agencies and private corporations.  Today’s opinion compares and contrasts the ACA with other nominally private corporations with which the courts have previously held were clothed with state power to a degree sufficient to invoke OPRA.

Today’s decision, albeit a loss, has value because it helps clarify how deeply the government can entangle itself with private corporations before its entanglement triggers OPRA.

Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project. Please send all comments to [email protected]