March 15, 2015
For immediate release
President, New Jersey Foundation for Open Government
Sunshine Week Focus Is Open Government and Public Records Access
is National Sunshine Week, a yearly event that highlights the importance of open government and our “right to know” as citizens engaged in our own governance.
Established in 2001, the New Jersey Foundation for Open Government
(NJFOG) is the only organization in New Jersey dedicated solely to improving public access to government records and meetings. NJFOG works to educate residents about the state’s Open Public Meetings Act (OPMA)
and Open Public Records Act (OPRA)
and also works to strengthen these laws and increase compliance.
“Unfortunately, government agencies routinely deny access to public records. Municipalities deny access to settlement agreements. County prosecutors deny access to criminal files, even for closed cases. Police departments deny access to routine arrest records. State agencies deny access to records on the basis that the records requests are “overbroad,” even in cases when the records are easily identifiable. While there are always exceptions, there continues to be a strong culture against disclosure,” said NJFOG president Walter Luers.
Effective in 2002 and amended in 2010 to reduce fees charged to records requestors, OPRA is intended to allow increased public oversight of governmental operations. OPRA requires not only that public records be provided upon request, but that they be provided timely, and there is a large body of case law (common law) that gives teeth to the Act.
Violations of the OPMA, also known as the Sunshine Law, may be more prevalent statewide due to the absence of a “fee-shifting” provision in the statute that would mandate reimbursement of a successful plaintiff’s court costs, including attorney’s fees. Without that assurance, few individuals are willing to bring OPMA lawsuits, the threat of which would otherwise act as a deterrent to abuses.
There is also the matter of enforcement of common law that has expanded or clarified what records are public. As with OPMA lawsuits, suits brought under the common law right of access involve no mandatory recovery – typically, plaintiffs are out their costs even when they win.
There is little doubt that many public agencies balk at providing records that are public under common law based on the safe bet that no one will sue for them. One such category of public records, in particular – the names of health benefits enrollees – has had to be litigated more than once in recent months despite a 2005 appellate court ruling (Michelson v. Wyatt) that established the records are public in nature. First Middletown Township was successfully sued for the records in 2013, and more recently Hainesport Township. The judge in the latter case sent a clear message, and bucked usual practice, by requiring Hainesport to reimburse the plaintiff’s costs.
Amendments to OPMA and OPRA now in the Legislature
– bills S781/A2900 and S782/A2763, respectively – are intended to modernize and reform the existing laws. Proposed reforms include, but are not limited to, stronger public notice requirements, a requirement that minutes be approved within 60 days, an increase in the minimum time allotted for public comment, application of the laws to many quasi-governmental entities that are substantially controlled by a governmental agency, and mandatory reimbursement of costs to successful plaintiffs (now only under OPRA).
There is also a need for clarification as to who has a right to sue under OPRA and OPMA
. Intuitively, that right belongs to the person who has been denied records or meeting access. Is it fair, for instance, for a records requestor to be sued under OPRA by a publicly-funded agency seeking a ruling that records are not
public? If allowed, it will have a chilling effect on public participation. The requestor-defendant would likely be out his expenses even if he prevails because OPRA mandates recovery of a requestor’s costs only if he is a successful plaintiff.
Notwithstanding its support for statutory reform, NJFOG supports the enactment of local laws to strengthen open public meetings rules at the municipal level. The idea if for transparency-minded town councils to voluntarily adopt a model ordinance that subjects them to a stronger set of public meetings rules than required by current state law. NJFOG trustee John Paff presented the proposal to the Sussex Borough Council
on February 24th
and said that the council was “blazing new territory” just by talking about it.
NJFOG last year began to actively review OPMA compliance in the state, notifying public agencies of their violations and filing suit on the public’s behalf when necessary to gain compliance. This “affirmative litigation” approach was deemed necessary to put the state’s governmental offices on notice and give them greater incentive to voluntarily obey the Sunshine Law. It also adds to the relatively small number of court decisions that bolster the Act. Common OPMA violations include closed session resolutions that are too vague, discussion in closed session of topics that ought to be discussed in public, and minutes that have insufficient detail to reflect actual meeting discussion. NJFOG most recently filed suit against the Trenton Board of Education
and last year prevailed in its suit against the Island Heights Board of Education
In addition to the OPMA and OPRA reform legislation, there are some other New Jersey bills that affect your “right to know”.
S1236, sponsored by Senator Peter Barnes, addresses the need for greater transparency in police internal affairs investigations. S1236 would establish a 2-year pilot program in Edison Township whereby the New Jersey Attorney General’s office would assume the police internal affairs function for the township. NJFOG supports S1236 with an amendment that provides for public disclosure of the internal affairs records at the end of the 2-year pilot.
John Paff testified on S1236 at a hearing on January 15 before the Senate Law and Public Safety Committee.
He stated, “It’s unreasonable to expect citizens to believe in the veracity of a system that they cannot see operate…We wouldn’t tolerate our Mayor and Council saying “You don’t need to see the municipal budget – trust us, we’re taking care of everything on your behalf.” Similarly, we shouldn’t tolerate our police chief saying “You don’t need to see our internal affairs files – trust us, we’re making sure that the officers who do wrong are being properly disciplined.””
A841 provides that, for law enforcement incident reports, the address of a person would be considered confidential. NJFOG strongly opposes this bill for the simple reason that there is often a need by journalists, researchers and other citizens to contact persons who have been involved in a particular incident. Redaction of address from incident reports would prevent necessary communication that may benefit the general public or the person involved.
S2181 (A3417) and S2183 (A3350) are perhaps the most well publicized pieces of legislation. These bills provide for broad reform of the Port Authority of New York and New Jersey. The bills passed the New Jersey legislature in 2014 with unanimous support, as did sister bills in New York. S2181 includes public meetings provisions, among other reforms, while access to public records is addressed by S2183, which brings the Port Authority under both New Jersey’s OPRA law and New York’s freedom of information law. S2183 was conditionally vetoed and is awaiting amendment, while S2181 was vetoed outright.
It’s particularly noteworthy that an override vote on S2181 is scheduled by the New Jersey Senate during Sunshine Week, on March 16.
The New Jersey Foundation for Open Government welcomes invitations to speak throughout the state and can be reached at email@example.com. Those who would like to learn more can join the NJFOG Q&A Forum on Facebook and find a host of resources on the Foundation’s website (www.njfog.org) and main Facebook page (www.facebook.com/njfog).