In celebration of Independence Day, TTJ is publishing two excellent editorials that appeared in NewJersey.com on the importance of an informed electorate to the maintenance of our democracy. The New Jersey Open Public Records Act and Open Public Meetings Act, as the editorials point out, are instrumental to our freedom.
NewJersey.com, June 21, 2017. Transparency is part of a democracy.
Under a democratic form of government, transparency in public institutions is not an option – it is the air we breathe, the freedom we have a right to expect. Granted, some mechanics involving that public information, especially in the digital age, may have become more labor intensive. Yet the “open” part of open government remains. It cannot be negotiable.
This week the state Supreme Court upheld that basic premise, clarifying the obligations of government agencies to provide information even when paper records are slowly disappearing, and when public records, in general, are being compiled digitally into other multiple documents or email attachments. In its ruling on a case out of Atlantic County, the court made clear that the responsibility and necessity of delivering public information is sacrosanct, whether that information is kept on electronic databases, or if it means extracting information from a larger public document.
In its unanimous ruling, the court overturned an appellate decision and said that Galloway Township officials were required to supply a list of internal emails to a public records advocate in a case that began in 2013. Township officials had denied the request by saying the list was not a public document and would have to be created, although the emails themselves were public. In court documents, however, the township acknowledged that the list would have taken two to three minutes to compile.
Local governments, in particular, are sometimes resistant to public records requests. But New Jersey’s Open Public Records Act, also known as OPRA, makes it clear that public records are exactly that, and must be maintained and accessible to the public. Unsurprisingly, the case was monitored by government transparency groups and media organizations, but its reach applies to all citizens who care about open government.
“OPRA makes clear that government records consist of not only hard-copy book and paper documents housed in file cabinets or on shelves, but also ‘information stored or maintained electronically’ in a database on a municipality’s server,” Justice Barry Albin wrote for the court.
John Paff, who heads the New Jersey Libertarian Party’s Open Government Advocacy Project, had requested a list of emails under OPRA for a two-week period in 2013, between the township clerk and its police chief. He asked that the township include information about the sender, recipient, date and subject matter. He said the selection was made randomly.
Paff told The Record the court’s ruling strengthens an area of OPRA that had been subject to a range of interpretations. Some government agencies had been supplying information embedded in databases, while others had said they would supply only existing public documents.
“Information in an electronic form, even if part of a larger document, is itself a government record,” wrote Albin. “Thus, electronically stored information extracted from an email is not the creation of a new record or new information; it is a government record.”
We understand that in these days where local governments are still learning to live under the 2 percent cap, and where clerks’ offices might be understaffed that granting seemingly frivolous public information requests might be burdensome, and yet in a democratic government the right to open records and government transparency must be upheld, even when it’s inconvenient.
NewJersey.com, June 29, 2017. Turn on the recorders in Lyndhurst.
In New Jersey, many municipalities continue to fail to grasp the notion of “open government,” one of the bedrocks of our democracy. Last week, public officials in Lyndhurst arbitrarily decided they had a right to stop a resident from recording a Board of Commissioners meeting. The commissioners’ and township attorney’s action, if not a direct violation of the state’s Open Public Meetings Act, at the very least is a violation of its spirit, which is to improve transparency in the workings of government.
As Staff Writer Jaimie Julia Winters reported, at the start of the meeting township officials instructed resident Monu Sohal to stop recording and to remove the camera he had set up in the back corner of the room earlier that morning. Sohal said he wanted to record the meeting because many residents couldn’t attend, because it was held at 10 a.m.
“You need permission,” Mayor Robert Giangeruso said, pointing to Sohal. The township attorney, Carmine Alampi, told Sohal to stop recording, saying he needed permission and telling him “to remove the camera from the room.”
How many times does this point need to be made? Residents have a right to access the actions taken by their elected officials. Public officials do not operate in a Fortune 500 boardroom. They are elected by the people, and the people have a right to know what they do and say.
Indeed, citizens in New Jersey and the rest of the nation are about to celebrate our independence from Great Britain. Those men who risked life and livelihood to found the nation believed in representative government, a government that is the voice of the people who elect it, and also answerable to them. Lyndhurst’s actions against this resident skirt away from those ideals.
As The Record reported, Lyndhurst does not have an ordinance regulating the recording of commissioners’ meetings, but Giangeruso and Alampi said all residents wanting to record video or audio of a public meeting will now need permission to do so. Experts on open public meetings law disagree with that premise.
“They didn’t have a right to stop him from recording,” said Walter Luers, vice president of the New Jersey Foundation for Open Government. Indeed, Luers said even the idea of a resident seeking prior permission to record goes against the Open Public Meetings Act and is unconstitutional.
Although recording government meetings is not addressed under the Open Public Meetings Act, the New Jersey Supreme Court ruled in a 2007 case, Tarus v. Pine Hill, that the public has a common-law right to videotape and record public meetings, subject only to reasonable restrictions. The court held that the borough had not set any guidelines, which towns must do if they wish to restrict the right to videotape.
“Openness is a hallmark of democracy – a sacred maxim of our government – and video is but a modern instrument in that evolving pursuit,” said Justice James R. Zazzalli, writing for the court.
Zazzalli’s words are a reminder of the importance of transparency in our government. This principle was alive in 1776, and it is alive today. We don’t know what will happen the next time someone tries to record a meeting in Lyndhurst, but we know what should happen. The township should grant access to record, plain and simple.
May everyone have a safe and festive July 4th!