WESTFIELD, NJ — The local government is joining the chorus of New Jersey towns calling for a “Study Commission” to review the state’s public records laws. It is something advocates for open government have strong reservations about.
The measure approved by the Town Council Tuesday calls on the state Legislature to convene the commission to review the Open Public Records Act. It calls the New Jersey statute a “well intended law that has spiraled out of control” due to the volume and nature of the requests and the costs of processing those requests.
“There are eight bills in this early session down in Trenton to do some sort of amending to OPRA,” said Town Attorney Tom Jardim at the council session. “It’s certainly an issue that has been talked about down there for years, but nothing has gotten done.”
Lori Buckelew, a senior legislative analyst with the New Jersey League of Municipalities, which crafted the resolution along with the state Municipal Clerk’s Association, said Tuesday that 173 towns had passed versions of the measure and that a bill, S-180, introduced in this legislative session would create the commission to review the law initially enacted in 2002. In Union County, Garwood, Clark, Fanwood, Roselle Park, Union Township and Linden have approved versions of the measure intended to modernize the law, Buckelew said.
“Eighteen years ago, you were still using dial up internet, and police weren’t wearing body cameras,” Buckelew said. “I’m not sure mobile dash cameras were even being used.”
The resolution, which the Westfield Council approved unanimously, says the town has responded to an increasing number of OPRA requests, including 1,150 requests in 2019, which its municipal staff spent 1,040 hours processing.
“Due to the often-conflicting case law and Government Record Council decisions as well as the unique characteristics of OPRA requests, the Town of Westfield must often times rely on the municipal attorney to review certain OPRA requests, resulting in additional fees of over $20,000 in 2019 alone,” the resolution states.
John Paff, chairman of the New Jersey Libertarian party’s Open Government Project, who reviewed Westfield’s resolution, noted that the town’s 2019 municipal budget carried a nearly $28 million tax levy. Tallying the municipal worker hours with the attorney fees, Paff said, brings the cost of processing the records request to approximately $100,000 in 2019 — money well spent.
“We’re talking a total of $100,000 against a $28 million-dollar budget for government to be accessible and transparent,” Paff said. “You have to have a mechanism for enforcing the Open Public Records Act.”
CJ Griffin, a public records attorney with the firm Pashman Stein Walder Hayden, noted legislative efforts already underway to modernize OPRA with Senator Loretta Weinberg's bill, S-380, which would require inclusion of certain state financial information on an open data website and create a program for the development of local websites.
“If towns have these concerns about OPRA, then they should rush to support Senator Weinberg’s OPRA reform bill,” Griffin said. “It clarifies many of OPRA’s provisions and also provides agencies tools to deal with some of the issues they complain about the most, such as permitting them to charge fees for high volume commercial requestors.”
Buckelew said the League objected to Weinberg’s legislation because it included a provision for fee shifting whereby plaintiff’s attorneys in public records cases are automatically awarded attorney fees when winning a public records case.
“Prevailing attorney fees is a big issue,” Buckelew said, referring to Weinberg's bill. “The bill also expands the definition of government record, and we have concerns with that.”
Given the League’s past action on OPRA reform, Griffin is not confident in its ability to represent the public interest in public records law.
“All we have seen from the League of Municipalities for years is resistance to the reform bill,” she said. “Public records belong to the public and these resolutions just feel like agencies complaining about doing one of their primary functions as custodians of our records.”
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