PEEK BEHIND THE CURTAIN

Editorial: State Law Still Enables Journalists To Peer Into Government Operations

New Jersey’s “Open Public Records Act” [OPRA] allows journalists to demand public documents from township administrators. Despite the law being weakened during 2024 in several ways we will discuss, it still enables revealing moments of transparency.

For instance, over the last year, Mount Holly Fire District administrators used the 2024 OPRA amendments to delay and reduce the number of public documents available through OPRA. Commissioner Saucier said my OPRA request was too “vague” to fulfill. (I had asked for all emails between [named staff] during a certain date range. This may have been too many emails, but it was not vague). She then brought a lawyer in to deal with my request who said: the request is “over broad”, but, I could get over 1,000 emails if I paid a “redaction” fee of about $2,500.

The 2024 OPRA amendments not only introduced the type of financial barrier noted above, it ushered in a glacial dialogue process. Every communication between myself and the Fire District lawyer introduced weeks of delay. The entire OPRA request duration has ballooned to over 6 months - and counting.

My efforts to compromise with the lawyer resulted in an agreement [I think?] which will provide about 60 redacted emails with no fees. But I am now at 3 weeks and counting since I agreed to what I believed was a settlement with the Fire District attorney. I still have no reply from them.

Not surprisingly with such delays as the norm, the State agency that handles these disputes [Government Records Council] has over 600 unresolved disputes state-wide which are awaiting adjudication. I believe these disputes will take years to process. This is why I use “mediation” instead of choosing adjudication. Mediation produces a dialogue process that can still be way too slow but eventually get results - even if somewhat unsatisfactory.

Despite the difficulties inherent in the new process, mediated negotiation has unexpectedly thrown back the curtain on government processes. Because of the iterative negotiations, the attorney gave me a sequential count of emails each time I peeled back the number of people being requested. This process revealed a surprisingly high number of communications between two individuals in the Fire District. During the 48-day period my request covered, it was revealed that two individuals exchanged 425 emails while the third individual requested received only 5 emails during that same period of time.

If I had been willing to pay the likely fee of about $900 to redact those 425 emails, I suspect a story worthy of publishing would have emerged. But as it stands, I will have about 60 redacted emails instead [if the attorney ever decides to get back to me].

PULLING BACK THE CURTAIN

Even before the OPRA amendments, my requests tended to pull back the curtain on government operations and revealed how documents required to be maintained by state law, were missing. Like missing contracts. The State of New Jersey mandates the “retention schedule” for such documents and Mount Holly is in violation of that schedule because they have lost some of them.

This is not a surprise to me since about 20 years ago I was on the Mount Holly Environmental Commission and the town Clerk allowed me to organize township files from the NJ Dept. of Environmental Protection. I remember those files as an unlabeled, uncategorized mess. If that typified the kind of effort for other documents, then it would indeed be time consuming to find any specific file.

So, where do these files go when the state demands they must be stored but the township has run out of storage space? That’s right, a contractor charges us money to store them at an off-site location. And what happens when misfiled, mislabeled documents are stored in vaguely labeled boxes at an off-site location managed by workers who have no connection to those files? That’s right, they are “lost”.

Recently, the township records custodian told me that the now expired contract of the Township Manager Josh Brown is missing. Since 2021, Mr. Brown has been working as our Manager with an expired contract. But since the State requires even expired contracts to be retained for 6 years and since that contract might be legally relied upon to regulate certain conditions of Brown’s employment, it seemed worth getting a copy. But it’s lost.

A few years back I asked our records custodian for a copy of the contract between Mount Holly and the vendor who manages our compost recycling facility on Herald Avenue. Guess what? It was lost. The contractor had to supply us with a copy of the contract created by the township.

And most recently, when I asked for a copy of the township contract with the vendor who stores our records, our records custodian simply did not answer my request. So, I had to submit another complaint to the Government Records Council saying that the request was “deemed denied” and I requested mediation. I suspect the township will “lawyer up” and waste more tax dollars in a silly dispute over records that started their lives as electronic documents and should be stored in a coherent, easily available way.

AN OVERWHELMING TASK

I can’t seem to shake an expectation that our government should be well organized, transparent, and efficient. I’ve actually seen it in practice at other townships. But here is the truth: each government body has its own personality and capabilities. If the office is somewhat understaffed, and takes the attitude that certain tasks are a “waste of time” for their limited resources - those tasks fall behind. And once a filing system has fallen out of good order, a kind of inertia takes hold that almost ensures those records will never get organized. Its understandable that an overwhelmed records custodian decides to just maintain the “core records” and adopt a “deal with it later” approach to the others.

I suggested that Mount Holly commit to a document scanning project which would involve a part time worker who goes to the remote storage facility, scans and organizes the stored physical documents so they can be destroyed in accordance with state law. At some point, that document storage contract would not be needed. The suggestion did not receive a response.

OTHER CONSEQUENCES OF 2024 OPRA AMMENDMENTS

Before the amendments, lawyers who tried and won an OPRA denial cases in Superior Court would get the standard fees paid by the township who lost the case. This had the undeniable logic: The State of New Jersey prized transparency so much that it was willing to punish government agencies who were found to be breaking the law. But the Municipal Clerks’ Association of New Jersey, along with the state Assembly and Senate didn’t see it that way, and so, on June 5, 2024, Governor Murphy signed amendments to OPRA removing automatic payment in cases where a township loses.

Additional amendment consequences applicable to this article are:

1. Slower Response Times: The response time is extended to 14 business days (longer if records are in storage).

2. Email & Electronic Correspondence: Requests must identify specific job titles or email accounts, a specific subject matter, and a “reasonable” time period. [THIS MEANS YOU HAVE TO GUESS AT WHAT THE EMAIL WRITER NAMED THE EMAIL - A RATHER UNFAIR REQUIREMENT].

3. Narrowed Scope & Broad Denials: Agencies can deny requests that are deemed too broad, require extensive research, or do not provide enough specificity.

CONCLUSIONS

Even the story about the Emerald City in the land of OZ showed us that authority is not always transparent and acting in good faith. If it were not for the little dog “Toto” pulling back the curtain, Dorothy and her friends might still be waiting for the Mighty Oz to set things right.

Thankfully, we here in the land of New Jersey have the Open Public Records Act to pull back the curtain.

It helps to recognize that our government may be overwhelmed and some patience and a willingness to compromise is needed.

Nevertheless, demanding government records is an often-contentious act that requires persistent follow-up and is likely to involve inordinate delay and possibly significant fees.