NJ Watchdog: Appeals court to weigh tactics in Christie records denial

Is it legal for government to be “sneaky” in responding to requests for public records? Or do public officials have a “duty of cooperation” to be fair with citizens?

Those questions are at the heart of an Open Public Records Law case against Gov. Chris Christie and his staff that awaits a hearing in a New Jersey state appeals court.

“Government is not allowed to be sneaky,” asserted attorney Donald M. Doherty Jr. in his brief on behalf of a New Jersey Watchdog reporter. “It must be above board in all of its dealings.”

The case is food for thought during Sunshine Week, March 15-21, which promotes openness in American government and warns against the dangers of excessive and unnecessary secrecy.

The full story is online at http://watchdog.org/205991/tactics-christie-records-denial/.

It's Sunshine Week

March 15-21 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.

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.   Important reforms are proposed, including, but 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 are some other New Jersey bills that will also 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.  

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.  Among other reforms, S2181 includes public meetings provisions, 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.

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The New Jersey Foundation for Open Government welcomes invitations to speak throughout the state and can be reached at info@njfog.org. 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.

Sunshine Week: Arming citizens with the power of knowledge

By Heather Taylor

It’s Sunshine Week, that time of year we reflect on the importance of government transparency and how critical it is to our democracy. Much of the conversation during Sunshine Week focuses on the failure of government to be open and transparent. Citizens, Journalists, and Reform groups use this time to highlight how we can expand our current rights and combat government secrecy.

This attention is sorely needed, citizens across the New Jersey are often forced into countless hours in court or before the Government Records Council (GRC) just to get access to the most basic documents like budget data and meeting minutes. We have all seen or heard these stories, local governments operating behind closed doors, in the shadows.

And while we must continue to fight for strengthening the Sunshine Law and for expanded access to information, it is also important to remember why we fight for this information and what we do with it.

James Madison, whose birthday commemorates Sunshine Week, once said, “Knowledge will forever govern ignorance, and a people who mean to be their own Governors must arm themselves with the power which knowledge gives.” During Madison’s time he and his colleagues took to writing pamphlets to inform their neighbors of important issues facing our nation.

Today’s modern day pamphleteers are the bloggers and citizen journalists in city hall, covering the budget meetings and planning board hearings. We must arm these citizen journalists with the knowledge and tools to make a difference in our towns, school districts, and even the state government.

With local news bureaus shuttering, there has never been a more urgent time for citizens to step up to the plate. Go to your next local meeting and take a look around the room, how many reporters are covering the meeting? You are lucky if there is one.

Imagine what would happen if each of us followed the lead of citizens like Union County’s Tina Renna, who became a citizen journalist and reports to the public how the county’s tax dollars are being spent. Or citizens like Camden County’s Bob Shinn and John Tremble, who use public information to identify and implement best practices for cutting government waste. These three citizens alone have uncovered millions in wasteful government spending – now imagine what would happen if we each chipped and did our part.

So while we continue to expand access to government information, we must also be working to expand the pool of citizen leaders and citizen journalists like Tina, Bob and John – teaching people how to access information and use it to chart a smarter course for government.

Think back to those days, weeks, and months after Superstorm Sandy, we saw first-hand how having access to timely and relevant information is critical.

By using the Open Public Records Act, citizens can monitor how tax dollars are being spent to clean up debris. And through the Open Public Meetings Act, or Sunshine Law, citizens can sit on planning meeting to ensure that our shore towns are rebuilt with the infrastructure in place to withstand another Superstorm Sandy.

That is why we continue to educate citizens on how to constructively use the information they gather through the OPRA process. For example, on April 1, we will be training citizens how to cover news through new forms of media (thecitizenscampaign.org/new_media_post_sandy).

With access to information, citizens are able to constructively participate in the process and give feedback or offer best practices. And the more informed discussions we have, the better off our state will be.
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Sunshine Week; A Time To Shine Light On Proposed Law That Would Roll Back Transparency

by Linda Baum
March 10, 2013

March 10th marks the start of “Sunshine Week”, so named to shed light on the importance of open government and public access to information. Its arrival is timely because amendments to the Open Public Records Act (OPRA) and Open Public Meetings Act (OPMA) are now working their way through the New Jersey legislature.

Bill S2512 (A3712) is intended to modernize and reform the OPRA law. However, one key provision will not result in reform at all and may instead dramatically curtail governmental transparency. The matter involves just one little word – changing “shall” to “may” – with respect to court award of plaintiff’s legal fees. The change would eliminate the guaranteed recovery of fees for a successful suit.

It doesn’t take a genius to figure out that the result will be far fewer challenges when governmental entities deny access to public information, even when access is denied in clear violation of the law. Not only will this reduce transparency, but it creates an incentive for fraud and abuse by government.

Even when a suit is brought, the army of publicly-funded lawyers available to governmental offices creates an unfair advantage. This emphasizes the need to empower the public by ensuring their legal costs are recoverable if they win.

Senator Loretta Weinberg is a primary sponsor of S2512. Please take a moment to call or email the Senator to urge her to keep mandatory fee-shifting in the OPRA law. Please call her at (201) 928-0100 or send her an email via website http://www.njleg.state.nj.us.

Walter Luers, president of the New Jersey Foundation for Open Government (NJFOG), penned the below letter opposing the change to the fee provision. The letter is intended for use as a draft by other organizations and members of the public in their correspondence with state legislators. Mr. Luers does a very good job explaining the issue.

*****

Honorable Loretta Weinberg
District Office
545 Cedar Lane
Teaneck, NJ 07666

Re: S2512

Dear Senator Weinberg:

I am writing to oppose any amendment of the Open Public Records Act (“OPRA’) that changes the requestor’s entitlement to an award of reasonable attorneys’ fees from “shall” to “may.” In particular, I am writing with respect to S2512.

As you know, mandatory awards of reasonable attorneys’ fees to prevailing members of the public have been in OPRA since it was first passed. Mandatory fee-shifting guarantees that there will be at least some lawyers who are willing to handle OPRA cases for members of the public and non-profit groups who do not have the resources to pay lawyers the several thousand dollars it costs to bring an OPRA case in Superior Court.

If citizens and non-profits who are denied access to public records are also denied access to lawyers, they will be effectively disenfranchised and will not be able to participate meaningfully in government.

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. That can only be countered with strong activism through many means, including the Court system, with the assistance of competent, diligent and experienced legal counsel.

Relative to the resources of citizens, public agencies are immensely powerful. The State of New Jersey has its own law firm – the Office of the Attorney General – to defend it in OPRA cases. All counties have in-house counsel or powerful law firms that routinely represent them. The larger cities and municipalities have lawyers who work in-house or have lawyers on retainer. Every municipality has access to lawyers who regularly advise them on legal matters, including OPRA. As you know, taxpayers pay for all of these lawyers.

Mandatory fee-shifting in OPRA is not an advantage; rather, it was intended to level the playing field. The attorneys who work for public agencies and who handle OPRA cases are guaranteed payment, regardless of outcome. If the attorneys who work for public entities are guaranteed to be paid no matter what happens in a case, then it is only fair that lawyers who handle OPRA cases against public entities should be paid a reasonable fee in every case in which they prevail.

I emphasize that attorneys’ fees must be reasonable. While fee-shifting itself is mandatory, Courts and judges already have broad discretion to determine the amount of those fees, relative to the success achieved (among other factors).

If the fee-shifting provision in the law is changed to “may,” it will create, at best, a tremendous amount of uncertainty regarding the circumstances under which attorneys would be entitled to fees. This uncertainty will reduce the public’s access to competent lawyers.

For these reasons, I urge you to retain mandatory fee-shifting in OPRA.

Sincerely,
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