Credit: Credit: Pamela Barlow

Tom Cafferty has been teaching communications law at Rutgers for the last 10 years – about as long as it took him to get New Jersey’s Open Public Records Act passed. Cafferty, one of the state's top First Amendment attorneys, graduated from Rutgers in 1969.

Students enrolled in Thomas Cafferty’s communications law course at Rutgers’ School of Communication, Information and Library Studies (SCILS) in New Brunswick learn firsthand what it means for a journalist to have right of access to public records and documents.

Cafferty, who teaches in the Department of Journalism and Media Studies, is perhaps New Jersey’s pre-eminent First Amendment and media law attorney. As the legal counsel to the New Jersey Press Association (NJPA) for 35 years, he worked for more than a decade to get New Jersey’s Open Public Records Act (OPRA) passed and is widely recognized as the father of the measure.

The Open Public Records Act, enacted by the State Legislature in 2002, allows any member of the public to examine or photocopy records of any state, county, or local government agency. Under OPRA, all levels of New Jersey government are required to produce records when properly requested, although there are some exceptions.

“[Cafferty’s] passion to maintain and increase the public’s right to know was obvious to all who worked with him during the epic struggle,” said John O’Brien, executive director of NJPA, which honored Cafferty for his long service to New Jersey’s newspapers at its 150th anniversary gala in Trenton this fall.

O’Brien said over the years Cafferty’s advice created the foundation for “countless [news] stories and series that have played a significant role in preserving our democracy and our way of life in the Garden State.”

In his course, discussion is always liveliest when journalists’ right to know rides the lectern. “Is the Open Public Records Act the ideal law that answers every question?” posed Cafferty. “No, but it is a huge improvement from the laws we had.”

Cafferty doesn’t believe that OPRA has made his job as an attorney easier, but it has certainly improved journalists’ right to access.

“There is a problem with perception at the municipal level,” Cafferty said. “[Government officials] feel it is a burden. It is a mind-set problem.”

A strength of the act is its provision that a record’s steward is required to pay attorney’s fees if a case is won in which a steward or record-keeper unlawfully declined access to an open record.

“In many ways, it is a self-enforcement incentive,” Cafferty said.

Cafferty, who is chair of the media law group at Scarinici & Hollenbeck in Lyndhurst, New Jersey, was asked to teach communication law for the Department of Journalism and Media Studies a decade ago.

He had not been involved in the university since graduating as a political science major in 1969. “I was hesitant to accept at first,” Cafferty said. “But I’ve really come to enjoy teaching. Students like to hear about real-life experience.”

Cafferty has more real-life experience in defending the media than any attorney in New Jersey. He has worked with every major state newspaper, the Philadelphia Inquirer, and the Reporters Committee for Freedom of the Press. He runs a legal hotline for all active members of the NJPA, and in several cases, helped defend New Jersey’s Shield Law.

“New Jersey probably has the best shield law in the country,” Cafferty noted. “I’ve defended cases 10 or 12 times in front of the New Jersey Supreme Court. It has been a privilege.” The courts, he continued, “have been very interested in protecting

free speech. There have been fewer libel cases because they are difficult to win. These tend not to settle. They are resolved in the court system.”

Maintaining the courts’ balance between keeping records open and respecting privacy interests is the focus of a new group of which Cafferty is a member: the New Jersey Supreme Court’s Working Group on Public Access to Court Records. He also is a member of the New Jersey Supreme Court Bench Bar Media Committee.

This story first appeared in the Winter 2008 issue of Alum-Knights, the newsletter for alumni of the Department of Journalism and Media Studies at SCILS. Pamela Barlow is a graduate of the journalism department and is the Puppy Program Manager for Guiding Eyes for the Blind in New York State.