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March 2, 2012

Re:      S-1452 Reforms to the Open Public Records Act

Dear Mayor:

The Senate State Government Committee on Monday, March 6, will consider S-1452, which makes certain changes to open public records act.

We all agree that government records should be readily accessible and transparent but there must be an appropriate balance between the need for openness and the transparency of government and citizens’ reasonable expectation of privacy.  We are concerned that the provisions of S-1452 will be a cost driver for local and State government, as well as mandating the release of information that a citizen would have assumed is confidential.

S-1452 will, among other things:

  • Changes the definition of “government record” or “records” to include records that are required by law to be made, maintained or kept on file by any public agency.  Currently, if a records custodian is unable to find a document, for example, a budget from 1975 they are not in violation of OPRA.  However, under this proposed change a record custodian in 2012 would be in violation of OPRA because the 1975 budget was innocuously missing or misplaced.
  • Defines the term “advisory, consultative or deliberative” material as material that is used and relied upon during the consultative process prior to the completion of a competitive application or the adoption of an ordinance, rule, regulation or policy by any public agency and that reflects personal opinions, recommendation and deliberations comprising part of a process by which public agency decisions and policies are formulated, rather than factual or statistical data, information or the official policy of that body, and the release of which would be injurious to the consultative function of government.   This is unnecessary since the term has been well established in case law.  This new definition will lead to costly litigation. 
  • Creates an exception to the exemption of information generated by or on behalf of public employers or public employees in connection with any sexual harassment complaint filed with a public employer or with any grievances filed by or against an individual. The individual who the grievance is filed against can allow the information to be a government record as long as the issue does not involve sexual matters
  • A government record will also include all forms of electronic mail communications among the members of a public body, excluding the legislature, constituting an effective majority as a government record.  While we appreciate the intent of this provision, technology exists for communicating electronically, the technology does not always exists to make “hard copies” of this information.  In fact, certain cell phone carriers will not provide this information without a subpoena.  
  • A government record will also include the names of reviewers of grants, donations, gifts or applications made to a public agency including the names of reviewers of charter school applications as a government record.
  • Defines a “public employee” as any person who occupies any office, position or employment in the government of the State of New Jersey, except the Legislature, or any political subdivision of the State, or a school district, or any special district, or any authority, commission, board, or any instrumentality or agency performing a public function or public service. This term shall also include, but shall not be limited to, an elected and appointed person.
  • Defines “Privacy” as the confidentiality and privilege protections to information and materials.
  • Defines “Reasonable” as that which the average person would believe to be fair and just.  This is a very subjective term.
  • If a records custodian redacts information from any record, the custodian shall inform the requestor of the redaction, why the information was deleted or excised, and shall specify the total number of pages deleted or excised.  The custodian shall note in writing specifically why the record was redacted.  This provision shall only apply to information redacted on or after the effective date of P.L. , c. (pending before the Legislature as this bill).  If a document was redacted prior to the effective date of P.L. , c. (pending before the Legislature as this bill), a service charge for time may be assessed to the requestor for information as to why a document was redacted.
  • Allows the requestor to review and object to any special service charge prior to it being incurred. During such review, the public agency shall provide the requestor, at no charge, an index generally describing the responsive government records to be provided.  To the greatest extent possible, the index shall include the name of each record or brief description of each record or general categories of the records to be provided, the approximate number of pages of each record or categories of records; and a detailed breakdown of how the special service charge was assessed.  If there are responsive government records known to be exempt in whole or in part, the agency shall also provide a description of the documents or the portions deemed exempt.  Special service charges shall not be assessed for requests for budgets, bills, vouchers, contracts and public employee salary and overtime information unless the request is deemed voluminous. 
  • Expands immediate records to include “any other document that is readily available”.
  • When possible, immediate access shall mean by 5 p.m., or close of the entity’s business day whichever occurs first, if the appropriate records custodian has received the request by noon.  Otherwise, if the request was received after noon, the records shall be made available to the requestor by noon the following business day.
  • The 7 business day includes the business day if the records custodian received the request by noon.  A requested received after 12 noon shall be deemed received on the next business day.
  • A requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee award.  However, in actions involving a record required by law to be made, maintained or kept on file and that does not exist or no longer exists, the prevailing requestor shall not be entitled to an attorney's fee award if both: (1) the failure to make, maintain, or keep the record is due to mere negligence or no fault on the part of the government entity; and (2) the requestor was informed in writing by formal certification or affidavit by the records custodian prior to the filing of the complaint that the record does not exist or no longer exists, the efforts taken to obtain the record and why the record could not be produced.  This is an unfunded mandate.
  • GRC decisions can be appealed in Superior Court not the Appellate Division of Superior Court.
  • Grievances shall be a government record when the individual who the grievance is filed against allows it and the issue does not involve sexual matters.
  • Records pertaining to the factual basis for disciplinary action in which an employee is suspended, demoted, discharged, or resigned not in good standing, if it was due to the conviction of a crime, shall be a government record.
  • Records pertaining to settlements of lawsuits or claims involving public agencies, public officials or employees shall be a government record.
  • Removes “knowingly and willfully” and “to have been unreasonably” and replaces it with “grossly negligent”.  This weakened standard exposes current records custodians to unnecessary and excessive punitive measures
  • Defines “grossly negligent” to mean engaging in conduct involving a gross deviation from the acceptable standards of conduct from the duties and responsibilities imposed by this act that a reasonable person would have observed in the actor’s situation.
  • No public official, officer, employee or custodian shall be subject to a civil penalty for any unavailable record that is required by law to be made, maintained or kept on file unless the unavailability of the record is a result of the willful actions or gross negligence of such person. 

We urge you to contact your State Senator and express your concerns with the provisions of S-1452.  While we all strive for and agree that open and transparent government is key, the provisions of S-1452 will make government inefficient. 

If you have any questions or need additional information please do not hesitate to contact Lori Buckelew at 609-695-3481 x112 or lbuckelew@njslom.com

Very truly yours,

 

William G. Dressel, Jr.
Executive Director

 

 

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