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,
[NAME]

The Citizens Campaign: Insider Tips For Accessing Public Records

Back on November 18th the Hyperlocal News Association along with the Citizens's Campaign held a workshop on OPRA and the Sunshine Law, I couldn't attend but a few people that I know did.

From all accounts, including the video of the workshop below, it was a lively and insightful event that engaged all that were in attendance and provided a wealth of information to those that believe in honest, open and transparent government while giving guidance to those who are interested in how to file OPRA requests with their local governing bodies or governmental entities.

Of particular interest to those who live in Middletown and have ever tried to get information from the Middletown Sewerage Authority (TOMSA), this workshop made it clear that TOMSA is in clear violation of the OPRA law.

People who have inquired about TOMSA policies for providing documents like the budget or bill lists, are told that they are only in paper form and that those in the TOMSA office don't have the ability to scan them, so documents can't be provided via email or CD.

If there are any documents that just happen to be in electronic form, only TOMSA Director Patrick Parkinson can approve a request to deliver it via email or on CD. Parkinson then, in violation of existing OPRA rules and fee schedules, determines how much to charge requesters for information requested.

As a case in point, when Sean Byrnes was a sitting Committeeman on the Middletown Township Committee, he was charged an outlandish fee of $75 for a copy of the TOMSA budget! How crazy is that?

The video below is long, it runs for an hour and 42 minutes and I hope that readers can sit through it because when the floor is opened up for a Q&A a lot of problems that people are having trouble with in other towns sounds eerily similar to those problems that people in Middletown come up against when requesting information.

As an FYI to go along with this, NJ State Senator Lorretta Weinberg is working to update the Sunshine and OPRA laws. Senate bill S. 1351 increases from 48 hrs to 3 days the advance notice requirement for agendas, and brings the OPRA law (passed in 1975) up to date with technology, among other changes.

Letting The Sunshine In; Two Recent Rulings That Middletown Should Heed

Two recent rulings on aspects of the sunshine law by judges last week are interesting because these rulings indirectly deals with Tony Fiore's statement that Township officials discuss meeting agenda items before scheduled public meetings.

John Paff, if you have not heard of him, is a Libertarian that challanges towns in NJ to verify that they are following Open Public Meetings Act and fulfilling OPRA requests correctly. He has won many lawsuits forcing towns to comply with the law.

In two press releases issued last week Mr. Paff discusses the outcomes of each:

Burlco Prosecutor: Evesham official "unwittingly" violated Sunshine Act

In an August 4, 2011 letter to the attorney for the Eveham Township Council, Burlington County Prosecutor Robert D. Bernardi said that "Evesham Township officials did unwittingly run afoul of the prohibitions contained in the Open Public Meetings Act" by discussing public business by way of e-mail communications. Prosecutor Bernardi, however, declined to impose fines against the officials because that it was a not a "knowing" violation and that "educating public officials who may have mistakenly violated the provisions of the statute is far more effective than the imposition of nominal fines."

The prosecutor's letter, which is on-line here, http://ogtf.lpcnj.org/2011216TS//b10804BurlcoProsEvesham.pdf was sent in response to a complaint filed by the New Jersey Libertarian Party's Open Government Advocacy Project.

Bergen Judge orders officials to stop using personal e-mail accounts

In an August 4, 2011 decision, Bergen County Superior Assignment Court Judge Peter E. Doyne considered, among other issues, the question of public officials using private e-mails to discuss public business. Judge Doyne ultimately concluded that using personal e-mail accounts for public business "appears highly questionable" and "order[ed] counsel for [the municipality] to circulate a memorandum among all pertinent Borough employees directing they use only their public e-mail accounts, rather than private accounts, when conducting town business."

This is the first such holding of which I'm aware and it may be useful in convincing other government officials to sent official e-mail communications solely through their governmental e-mail accounts. Judge Doyne's decision is on-line here. http://ogtf.lpcnj.org/2011216T8//DoyneWoodcliffLake.pdf

Many thanks to Kevin M. O'Brien, who filed and prosecuted this lawsuit without the aid of an attorney.

Tony Fiore and others on the Township Committee should take heed in these two rulings and make sure that when there are communications between Township Committee members and others in the administration, that they use their official township email addresses to do so. In this way they ensure that a record of their conversations are accessible to the public

Private correspondences between officials to discuss Township business, knowingly or unknowingly is a violation of the sunshine law, but more importantly is a violation of the public's trust.

Public Discussion, Why Would We Want To Do That?

Anyone who has been to a Middletown Township Committee meeting this past year has noticed a marked difference between meetings held this year and meetings from the past 4 years,the difference being the length of meeting, or how long the the meeting took to end.

This year,Township Committee meetings (the typical business portion, after all the pomp and circumstance) are typically over in a hour or less. While in the past (when Democrats Patrick Short and Sean Byrnes were seated) Township meetings lasted a couple of hours.

The reason for this dramatic change in meeting times has become very evident over the past 8 months, agenda items listed as up for discussion are very seldom if ever discussed during these public meetings and Committee members have nothing to say to the public during "comments".

In the past, Patrick Short and Sean Byrnes made it a point discuss items on the agenda during public meetings and because of their practice of informing residents through the discussion of agenda items, they were attacked by the majority for being "unprepared" and not reading through their meeting packets, which was never the case. To the contrary, Short and Byrnes were well prepared to discuss items in the public forum and were chastised for it.

So now, during the last Middletown Workshop meeting when resident Donna Kuntz stated that she was there to here what the Committee had to say about "easements", which was Discussion item "B" on the night's agenda, and wanted to know why nothing on the Discussion Item list was discussed, our acting mayor, Tony Fiore, basically stated there was no need to discuss items in a public forum. Committee members, if they have a question after receiving the meeting packets on the Friday before a meeting, call each other or the Township Administrator for clarification.

Listen to the audio:

As long as a quorum is not present, this type of behavior by elected officials is not in violation of any sunshine laws, but it is a rather dubious practice that keeps the sunshine from shining on those that administer the town. Any time you limit the input or knowledge of residents into how their town is run, is a direct attempt to limit the transparency of government and is a troubling practice to engage in and Middletown seems to do a lot of it.

You can read about this and other news from the last workshop meeting by reading the "It's Your Town" newsletter, its the next best thing to actually attending the meeting.

It's Your Town - Newsletter Volume 3, Issue 16- 8/1/11

This edition of It's Your Town newsletter covers the Middletown Township Committee Workshop meeting that was held on Monday, August 1, 2011 .

There were only a few resolutions voted on and 11 items on the agenda for discussion. However, most of the discussion items were not discussed. When a resident asked about the lack of discussion a very interesting response was given.

Tony Fiore, Middletown's acting mayor, said that there was no need to discuss agenda items in public because members of the Township Committee members receive their meeting packets on the Friday before every meeting. If a question arises, a Committee member will call a fellow Committee member, Township Administrator or someone else for clarification prior the public meeting, hence no need for discussions in public.

While this practice of Township Committee people calling others for clarification and information pertaining to items in meeting packets prior to open discussion of an item it not technically a violation existing sunshine laws, it is an extremely questionable practice that limits information being disseminated to the public by open and transparent means.

Read the newsletter for yourself, it's all covered here in this issue.

Letting The "Sunshine" In Monmouth

By Monmouth County Freeholder Amy Mallet

Common sense tells us that government is more responsive and ethical when its actions are open to public scrutiny. As Supreme Court Justice Brandeis famously said, “Sunlight is the best of disinfectants.” Woodrow Wilson, who appointed Brandeis to the Supreme Court, wrote about the need to shed light on the government. He said, “Light is the only thing that can sweeten our political atmosphere.”

As far back as the 1890s several states were already experimenting with disclosure rules to combat corruption in campaign finance. This is not a new conversation. Modern times change the delivery, but history provides us with perspective, and sometimes even inspiration.

The digital age allows more opportunities to let the sun in than ever before. We are living in unique times where technology creates new, exciting opportunities to widen access between the public and government. New tools such as imaging, scanning, the Internet, mass storage capacity and millions of hand-held devices have the potential to give people better insight into governmental decision-making, budgeting and spending.

This progress allows for two-way communication. For example, through the county Web site, individuals can send an e-mail with concerns or comments on a particular issue. The success of our political system requires that citizens be involved.

Human nature is such that elected officials who see no public interest in their activities are more likely to stray from the core interests of their constituents. At its worst, circumstances where elected officials face an apathetic public provide a breeding ground for corruption and abuse. Citizens need to care about how we govern, understand how government works and be aware of the issues we are addressing. They also need the tools to hold elected officials accountable for their actions.

Since taking office, I have advocated for certain changes geared toward a more transparent, accessible government:

In 2009, the Board of Chosen Freeholders supplemented online meeting agendas with the resolutions that were up for consideration by the board. This allowed the public to see more than just titles of these items.

Also in 2009, Monmouth County embraced social media and developed Facebook and Twitter sites.

In 2010, Monmouth County also began posting its proposed budget online. In the past it was posted only after it had been adopted.

Also in 2010, at my request and at little expense to the taxpayers, our Clerk of the Board moved from an antiquated tape system of recording minutes to digital recording technology. I would like to say this brought us into the 21st century, but it is more accurate to say it brought us out of the 1980s. This simple improvement has now allowed staff to more accurately transcribe the minutes, freed up space that had previously been used to store cassette tapes and gave the freeholders and staff immediate access to the important discussions that take place.
I am proud that as a result of moving to digital recordings of freeholder meetings, full audio of regular and workshop meetings are now available on the county Web site,http://www.visitmonmouth.comThis allows residents who are unable to attend meetings to hear the discussions that took place and stay more engaged in issues that are relevant to their lives.

The benefits of this technology go beyond convenience. We find ourselves in troubled times where citizens and the governments that serve them confront dire financial challenges. Municipal, county and state governments must be held to the highest standards of efficiency and productivity. The best means of reaching that goal is to pull back the curtain. In addition to posting meeting minutes and the budget we should post expenditures and employment and other contracts.

Despite these technological advances, I recommend that residents attend the meetings. They are generally held at the Hall of Records, 1 East Main St. in Freehold, with workshops at 2 p.m. and regular meetings at 7 p.m. on the second and fourth Thursday of each month. There are exceptions when the board takes the meetings on the road. A full and detailed schedule of meetings, as well as a wealth of other information, can be found on the county Web site.

Moving forward in this fashion would be a marked departure from the way many of our local public bodies have approached accessibility. But as technology advances excuses for failing to make this type of information available will evaporate.

Public officials need to be imaginative and efficient in organizing and making these documents available to the public. They should be encouraged in the knowledge that their efforts to promote government transparency fulfill the intent of those who founded our great country and ensures that the power entrusted to elected officials will not be abused.

Sunshine Award goes to Sean Brynes and Pat Short

From Pat Walsh's Middltown Musings

Democratic Township Committeemen Sean Brynes and Pat Short are to be honored with the "SUNSHINE AWARD" during this sunshine week for their successful efforts at shedding light on the Middletown Township Committee agenda.

Sean authored the resolution which sought to put the agenda material on the website . Not only did they convince there fellow committee members to approve the resolution, they have also managed to have a binder containing the agenda material placed at the meeting as well. For their combined support of bringing the sunshine law to life in Middletown they are to be commended.

Considering that Middletown residents have been left in the dark for the past 20 years by the GOP this is an astounding feat. On Monday nights agenda was a "resolution for the expenditure of funds" with no amount listed and no idea what the funds were being expended for. That method of hiding how they spend out tax dollars has finally ended thanks to their efforts.

I have to caution all of you that I still remain somewhat skeptical that the majority will adhere to the spirit of the law and this resolution. The GOP Majority has a nasty habit of dropping resolutions on the agenda and the democratic committeemen as they are literally walking in the door to a meeting.

I will wait to see how they live up to this ordinance before I will be convinced.

Middletown to put proposed resolutions online

From yesterdays Asbury Park Press - comment to follow:

Residents soon may be able to read the details of proposed resolutions and ordinances before attending Township Committee meetings. But once a meeting begins, a new ordinance will regulate how they can record the proceedings.

Officials plan to speak with at least one volunteer who has said he is willing to scan copies of the proposed resolutions and ordinances onto Middletown's Web site the Friday before a Township Committee meeting, said Anthony Mercantante, the township's administrator.

During its meeting on Monday, the Township Committee voted unanimously to institute the new online policy.

For months, Committeemen Sean Byrnes and Patrick Short advocated for the information to be posted on the Web site, saying it would allow residents to be better informed before attending meetings. Currently, only a one-sentence description of each proposed resolution or ordinance is posted on the site.

But Township Clerk Heidi Abs repeatedly said her office was already overwhelmed with work and could not find the time to do the scanning without additional manpower.

Bernard Reilly, Middletown's former township attorney, had also said there could be legal issues in posting information that could be withdrawn or amended before the start of a meeting.

During a committee meeting earlier this month, Mercantante suggested hiring a part-time employee to do the scanning. But Short said it made more sense to find a volunteer to do the work.

"We're talking about someone scanning documents for a couple of hours twice a month," Short said on Tuesday.

Mercantante hopes someone will be trained and able to do the scanning in time for the April 6 Township Committee meeting.

Also on Monday, Middletown Township Committee voted 3-2 to approve an ordinance that prohibits residents from using video devices — including cell phones — to record the meeting from the room's front half when there are more than 30 people in the room.

Township Committeeman Anthony Fiore — who voted to approve the ordinance along with Mayor Pamela Brightbill and Deputy Mayor Gerard Scharfenberger — said its objective is to prevent video equipment from getting in the way of people who wish to see what is going on.

"I don't think any of us object to anybody videotaping the meetings," Fiore said.

Byrnes said he does not understand how someone using a handheld camera while sitting on one of the room's benches could pose an obstruction to someone else.

After Scharfenberger said he had received several complaints, Short asked him to enumerate them. Scharfenberger did not answer.

"We just put something in law just speculating that there will be a problem," said Short, who noted that the only person he had ever seen recording meetings was Patricia Walsh, a Middletown Board of Education member who unsuccessfully ran against Brightbill and Fiore in 2008.

During the meeting, Walsh commended Township Committee for approving the new online policy but criticized members for the video recording ordinance.

"If I were grading you on open and transparent government, I'd give you an F," Walsh said.

 I assume that the resolutions are typed on the computer. why can't they just be copied and pasted to the Web site instead of printed and scanned back in by a volunteer? 

As for the video taping or recording of meetings, the ordinance that past on a strictly party line vote is an obvious attempt at trying to stop people from their rights to information. It is interesting that when pressed by Patrick Short, Deputy Mayor Scharfenberger could not or would not name one resident that complained about being distracted from the proceedings due to  Pat Walsh videoing them. It is a clear sign of partisen politics at its worst.