In a move that runs counter to the public interest, local governing bodies are adopting a resolution opposing legislation that would modernize and strengthen the state’s Open Public Meetings and Open Public Records Acts (OPMA and OPRA). The resolution is a generic, pre-written document, which is being circulated throughout the State by The Municipal Clerk’s Association of New Jersey. Unfortunately, the generic resolution relies on incorrect statements about the legislation (S1045 OPMA and S1046 OPRA). The truth is that most government officials, including the clerks, don’t want any oversight.
Tabernacle Township’s October 23, 2017 agenda listed its version of the Clerk’s Association’s resolution as Resolution 2017-81, “Opposing OPMA & OPRA Legislation.” The township meeting was canceled and rescheduled for November 13. I suspect that this resolution will be re-listed on the November 13 meeting agenda.
Here’s a presentation of the statements made by the Clerk’s Association in its generic resolution and an analysis of why its statements are incorrect.
Incorrect claim #1: The bills are unnecessary and unpopular with the public.
Safeguarding public funds requires a watchful, informed public. Bills S1045 (OPMA) and S1046 (OPRA) benefit the public by empowering people to better oversee those responsible for handling tax dollars. Strong Open Public Meetings and Records laws (OPMA and OPRA) are necessary for that advocacy. The need to strengthen these laws has been demonstrated time and time again by repeated OPMA and OPRA violations by public agencies across the state.
Primarily, bills S1045 (OPMA) and S1046 (OPRA) modernize the statutes for widespread adoption of the internet and electronic communication, allowing for better, more timely access to information. The bills establish which public agencies and bodies, including certain quasi-governmental entities, are subject to the Acts and encourage them to make public records available online. Other significant public benefits are listed below.
S1046 (amends Open Public Records Act):
- requires posted notice of the name and contact information for the agency’s custodian of records
- clarifies which records are public as well as private
- provides immediate access to certain records and defines when access must be granted
- spells out the redaction process to prevent inappropriate obscuring of information or pages
- requires adjudication of complaints by the GRC within 150 days
- allows a requestor to file a court action in place of a GRC complaint that is open more than 150 days
- creates an online searchable index of GRC opinions
- strengthens the provision addressing a denial of access that is willful or due to gross negligence and
- clarifies that penalties shall not be paid with public monies
S1045 (amends Open Public Meetings Act):
- clarifies when meetings must be open to the public
- improves agenda notice requirements and limits last-minute items
- provides better access to supplementary agenda materials
- requires that all public meetings have a public comment period
- establishes a timeframe for release of meeting minutes
- clarifies the window for challenging action taken at a meeting
- improves disclosure of subcommittee activities
S1045 (OPMA) also includes a provision that allows an individual who brings a successful Meetings Act enforcement action to recover his/her legal costs (“fee-shifting”). No fee-shifting provision exists in the OPMA currently. Few enforcement actions are brought because most people can’t afford to bring them. The lack of enforcement has resulted in widespread OPMA non-compliance by public bodies around the state, including many opposed to the OPMA reform that would give their constituents the means to enforce the law.
The Open Public Records Act already includes a fee-shifting provision that has improved both enforcement of and compliance with the law. OPRA mandates that a requestor who prevails in any proceeding shall be reimbursed attorney fees when a public agency is found to have improperly withheld records. Because the agencies that hold the records can choose not to disclose them for a variety of reasons, a strong enforcement mechanism is necessary for a requestor who encounters an improper denial of access.
There is broad support for bills S1045 (OPMA) and S1046 (OPRA) by public advocacy organizations and their members. These organizations include the New Jersey Foundation for Open Government, the New Jersey Press Association, the American Civil Liberties Union of New Jersey, and the New Jersey Chapter of the Society of Professional Journalists, to name just a few.
Incorrect claim #2: The bills fail to protect taxpayers, municipalities, and municipal clerks from abusive, harassing individuals who submit voluminous requests for no legitimate reason.
First, bill S1046 (OPRA) contains a new provision that, in exceptional circumstances, specifically grants a records custodian the right to ask a court to issue a protective order when a requestor submits voluminous harassing requests. This measure is intended to address the exact issue that is the subject of incorrect claim #2 above.
Second, while there may be a few bad actors, the overwhelming majority of OPRA requestors are seeking public information for a legitimate purpose. Members of the public or media, advocacy groups, and even government officials themselves are among those seeking records.
The volume of requests, including follow-up requests, submitted by legitimate requestors is partly a function of how forthcoming a public agency is in making records available. A public agency can reduce the volume of records requests and the resources needed to respond to them simply by operating transparently. A wide range of public records can be made available on an agency’s website, and a records custodian can fill a request for records by directing a requestor there. Ample guidance can be provided as to what records are available to better accommodate persons seeking information and to reduce the number of follow-up requests. Also, a records custodian can seek an extension of time to fill requests if needed.
Incorrect claim #3: The legislation would expand the Open Public Meetings Act to create impractical and burdensome requirements with regard to subcommittees and working groups.
Subcommittees consisting of a sub-quorum of a governmental body may or may not hold meetings that are open to the public at the discretion of the group members. S1045 (OPMA) does not change that. However, S1045 would require that at least once per quarter each subcommittee submit a written report to the full body, or make an oral report at a meeting of the full body, for inclusion in the full body’s meeting minutes. The subcommittee would not need to keep comprehensive minutes; rather, the written or oral report would summarize who sits on the subcommittee, how many times the subcommittee met, and the general issues discussed. That is hardly “impractical and burdensome.”
The Open Public Meetings Act was intended to allow the public to witness the deliberation underlying governmental decisions and actions. Often, the deliberation on an issue occurs at the subcommittee level with only a single recommendation and rubber stamp occurring at a public meeting of the full body. Thus, it is appropriate that the public be informed what options were considered by the subcommittee and why it reached the conclusion it did, especially pertaining to issues of significant public concern.
Incorrect claim #4: Under the bills, the responsibilities of municipal clerks would increase without additional resources provided to, or authorized to be collected by, municipalities.
Typically designated as the “custodian of records” for OPRA purposes, a municipal clerk is charged with keeping public records; that is a fundamental responsibility of his or her office. S1045 (OPMA) and S1046 (OPRA) do not significantly alter the duties of records custodians, public officials, or public agencies. The main purpose of the bills is to modernize the statutes for the widespread adoption of the internet and electronic communication.
By clarifying what information must be made available to the public and by offering modern ways to provide it, bills S1045 (OPMA) and S1046 (OPRA) will help records custodians and public agencies to better, and more easily, comply with OPMA and OPRA requirements. For example, bill S1046 (OPRA) allows custodians to fill an OPRA request by directing a requestor to the agency’s website to retrieve the records. A municipality can reduce the number of records requests it receives and the work of the clerk in responding to them by maintaining a website and posting on it a wide range of public documents. S1046 makes available an optional state-funded program that provides technical assistance to municipalities in developing and maintaining their websites to better comply with the statutory requirements. Municipalities will also have the option of using a state database to store their documents.
OPRA allows for certain revenue to be collected by municipalities. Under the current law, a requestor may be charged the actual cost of materials, such as the cost of a CD or paper copies, as well as a special service charge for requests that take a lot of time and effort to fill. Additionally, bill S1046 (OPRA) would allow an administrative fee for requests submitted by commercial entities, a fee to cover direct costs when records that are available online are requested in a different format, and a fee for copies made as part of the redaction process.
Incorrect claim #5: The bills would impose a financial burden on municipalities that would not be offset by a revenue source other than the property tax, making the bills unfunded mandates.
Providing access to public records and meetings is an integral responsibility of government and a normal cost of operation that serves to ensure the good stewardship of public funds. It is appropriate to use tax dollars to provide that access, which greatly benefits taxpayers and reduces the tax burden by helping to ensure that public monies are being managed responsibly. Taxpayers would most certainly pay a higher price for the waste and abuse that would flourish if government was allowed to operate in the dark.
The Open Public Records Act currently allows for certain fees to be charged by public agencies. A requestor may be charged the actual cost of materials, such as the cost of a CD or paper copies, as well as a special service charge for requests that take a lot of time and effort to fill. Additionally, bill S1046 (OPRA) would allow an administrative fee for requests submitted by commercial entities, a fee to cover direct costs when records that are available online are requested in a different format, and a fee for copies made as part of the redaction process.
A public agency that has improperly withheld records is required under OPRA to reimburse the legal fees of a requestor who must sue to get them (“fee-shifting”). S1045 would amend the Open Public Meetings Act (OPMA) to include a fee-shifting provision like that in OPRA. It is important to give the public a means to enforce the Acts and to increase voluntary compliance by public agencies.
A municipality can avoid the cost of OPRA and OPMA enforcement actions simply by complying with the law. Better training of municipal clerks, public officials, and agency attorneys on the statutory requirements may greatly reduce the number and cost of disputes. Bills S1045 (OPMA) and S1046 (OPRA) help both governmental offices and the public by clarifying what information is public in nature, when it must be provided and how. The legislation is a less costly and more efficient alternative than having the courts decide these issues.
By offering modern ways to provide information, bills S1045 (OPMA) and S1046 (OPRA) help public agencies to better, and more easily, comply with OPMA and OPRA requirements. Public meeting materials and an abundance of other public records can be made available on an agency’s website, and the records custodian can direct people there. Of the 565 municipalities in New Jersey, 563 (99.6%) already have a website. For those that need it, bill S1046 makes available an optional state-funded program that provides technical assistance to municipalities for website development and upkeep. Municipalities will also have the option of using a state database to host their documents.
While no website requirement currently exists for municipalities, a website requirement has existed since 2013, for the state’s independent authorities (such as sewerage authorities, fire districts, municipal utilities authorities, redevelopment authorities).
The reasons for open government are basic, well established and clearly explained by our judges.
Those who enacted OPRA understood that knowledge is power in a democracy, and that without access to information contained in records maintained by public agencies citizens cannot monitor the operation of our government or hold public officials accountable for their actions (Fair Share Housing Center Inc v. New Jersey State League of Municipalities, Appellate Court 2011).
The existing OPMA is 40 years old; the OPRA statute is 15 years old. Both laws need reform to address new technology and new circumstances.
Tabernacle committee members acknowledge the importance of OPMA and OPRA. If they really mean what they say, they should reject the Clerk’s Association’s groundless resolution.
The information in this Post was recently published in an article by the New Jersey Foundation for Open Government (NJFOG). In the interest of disclosure, I sit on the board of directors of NJFOG.
NJFOG is the only non-profit organization in the state dedicated solely to improving public access to governmental records and meetings. We work to educate the public about the Open Public Records Act and the Open Public Meetings Act, to strengthen these laws, and to increase governmental compliance, transparency, and accountability.