Daniel Walsh

(Published in The Press of Atlantic City on Tuesday, March 16, 2010)

Part 4 of a series on New Jersey’s open public records laws

Bernie Sayers’ house in rural Downe Township holds stacks of papers, many the legacy of fights he has had with his local government. But the Cumberland County activist wishes he could obtain more.

The 69-year-old computer consultant has argued with government officials about putting more documents online so people can have easier access without the copying costs. He wants copies of meeting minutes in computerized formats. Sayers said his ideas are rejected because of employees’ time, or fears someone may alter digital records and pass them off as originals.

He has concluded his barrier is not the state Open Public Records Act — it’s people.

“Having a law but not being able to implement it is useless,” Sayers said. “And it’s going to take a learning curve to do it right.”

More than seven years after the public-records law was enacted, open government advocates are working on ways to properly and consistently implement the law, which has become a major roadblock to residents seeking records and the clerks who provide them. The open-records law is implemented so unevenly that it often serves as a barrier to the public’s right to know. In some municipalities, clerks provide records diligently. Elsewhere, the gatekeepers too often lock the gate — or open it only reluctantly.

The reasons why are many. Some clerks do not know the law well. Others do not like transparent government. Still others are overwhelmed by massive information requests, particularly from businesses.

“OPRA is the bane of my existence,” Vineland City Clerk Keith Petrosky said.

But things could change. Interviews with state officials, municipal clerks, open-records advocates and state legislators revealed several common proposals to improve people’s access to public records and government’s ability to produce them:

– Make more records available online

– Fill vacancies at the backlogged Government Records Council, the state agency that decides records-access disputes

– Improve training for records custodians

– Lower fees for copies of records

– Fill records requests faster

Attorney Don Doherty, a Margate resident who specializes in public-records cases, said there must be a philosophical and fundamental change in which records are treated as the property of the public, not the government.

“In Florida, the public record is a constitutional right. So when you don’t get it, it has to be like a state secret,” said Doherty. “The second thing: Almost everything there is online.”

Many complaints about New Jersey’s Open Public Records Act do not concern the actual law. In fact, outside studies have given high grades to New Jersey’s records law. A study by the National Freedom of Information Coalition and Better Government Association found New Jersey’s records law to be one of the nation’s two best, along with Nebraska.

“OPRA was a big step forward,” Doherty said. “Some people are down on it because it wasn’t as big a step as they wanted. But compared to where it was, it doesn’t compare.”

A strong law on paper does not necessarily translate to more access in practice, however. One law cannot erase a long-entrenched culture of corruption and closed government, said Ron Miskoff, a Rutgers University journalism professor and head of the New Jersey Foundation for Open Government. Miskoff said too many public officials “think their job is to keep records from people” and stretch the boundaries of the law to prevent disclosure of information.

Doherty believes successful legal challenges will change behavior. After Absecon refused to provide animal-license records to the Atlantic County Society for the Prevention of Cruelty to Animals in 2006, Doherty sued on the society’s behalf and won. Absecon had to give up the records and pay $57,000 for its own and the SPCA’s legal fees, Doherty said. He sees it as a simple choice: Provide the records now, or pay for it later.

Fix the GRC

Doherty and others turn to lawsuits because they feel the Government Records Council, or GRC, moves too slowly on records appeals. The agency received 336 complaints last year and closed 348, but it still has a backlog, GRC Executive Director Catherine Starghill said. Starghill blames a shortage of staff and board members.

The GRC canceled two board meetings last year because its five-member board could not make a quorum, slowing reviews of records disputes. Then-Gov. Jon S. Corzine did not fill two GRC seats that became vacant in January 2008 and March 2009, respectively, said Lisa Ryan, a state Department of Community Affairs spokeswoman.

Assemblyman Patrick Diegnan, D-Middlesex, sponsored a bill in January to give one records council seat to the president of the Municipal Clerks Association of New Jersey. The state commissioners of education and community affairs hold two other seats.

Starghill said filling those vacancies would help, as would hiring another two employees on a seven-person staff that once had 10.

“Gov. Corzine kept saying we have to do more with less,” Starghill said. “My staff is sick of hearing that. Just two bodies would substantially change things.”

Going online

Putting more records online would eliminate many problems, records advocates say.

“The biggest issue is making documents available online, which saves huge amounts of office time, particularly for small municipalities,” activist Sayers said. “If it’s online, the person who wants it just goes looking for it.”

Sen. Jim Whelan, D-Atlantic, has proposed a bill to require all government records to be posted online by the agency that holds the records. New records created after the bill’s effective date would have to be posted on the Web within 30 days, while older records would be made available within six months.

Whelan, chairman of the Senate committee that deals with state government, held a hearing on the bill Monday. Whelan said he was sensitive to municipal concerns that the proposal would create a burden and would continue to work on the bill. But he said putting records online will be expected of government in the future.

Departments of the state government do post reams of records on the state Web site. Available records include prison inmates’ profiles, environmental remediation efforts, and amounts of tax-exempt open space. Counties have gradually followed suit, but many municipalities and school districts have lagged.

Mike Assad sought to bridge that technological gap in Absecon by pushing his school district to publish financial and administrative documents on its Web site shortly after board approval.

The 23-year-old school board member called for posting employees’ annual incomes, monthly bill lists, full-text versions of the school district budget, the annual audit, board treasurer and secretary reports, board member information, district contracts and bargaining unit employment contracts.

“Even if they don’t read it themselves, I think it gives people faith that information is out there,” he said.

School board Vice President Thomas Grites objected, concerned about information being “misinterpreted or misused” and losing the ability to monitor who accesses the information.

Absecon’s school board stuck with its current Web site, which includes a link to public records request forms misspelled OPRAH. The site includes budgets, salary information for nonunion personnel who make more than $75,000 annually, meeting dates, board members and their respective committee assignments, and a huge volume of school policies in document form.

Assad said that is not enough because it does not allow residents to follow the district’s day-to-day business.

“They enjoy being under the radar, because they can’t really be held accountable for what they do or who they are or what their responsibility is,” Assad said. “If you’re in that mindset, I can understand why these people oppose it.”

Vineland clerk Petrosky wants more city records online for the same reasons Assad does. His staff has begun using a document-imaging program to transition from a paper-based depository to one available digitally.

“If it were up to me, we’d just open up the vault,” Petrosky said. “If the records we have are public — and most are — they’re welcome to have them.”

Need for training

Most residents’ records requests are easy to handle, Petrosky said, but he gets frustrated by engineering firms, political operatives and others who ask for large volumes of information without being specific. He thinks New Jersey should consider different sets of regulations for individuals and businesses, with residents taking precedence and getting quicker responses.

His problem is compounded because many department heads are ignorant or afraid of OPRA and direct people to submit formal OPRA requests for routine information, Petrosky said.

That is a common refrain throughout New Jersey.

“Most towns can’t comply,” said Marc Silver, of Longport. “Longport and these other small towns don’t have the resources to do it. Nobody knows what to do. They’re all scared to death of it. No one even knows what to charge.”

Open-records advocate John Paff agreed, saying, “The problem, I think, with OPRA is people don’t know how to enforce it correctly.”

Silver said there needs to be more training, but the shorthanded GRC cannot provide much.

The New Jersey League of Municipalities could fill that gap, league attorney Matt Weng said. People simply need to ask. The league hosts training sessions at its annual conference, he said.

Such training would help records custodians better understand the “gray areas” among OPRA’s 24 exemptions, said Vincent Buttiglieri, president of the Municipal Clerks Association of New Jersey and clerk for Ocean Township, Monmouth County.

“Sometimes we’re just not sure whether we can or cannot release certain documents,” Buttiglieri said.

Costs and timelines

Records-seekers often complain the cost of obtaining records is too high. In February, a state appellate court agreed, ruling government agencies could charge only for the actual cost of copies, which is required by the law.

But the law is confusing because it also allows fees of as much as 75 cents per copy for the first 10 copies, 50 cents per copy for the next 10, and 25 cents per copy thereafter. Without other guidelines, most charge the maximum.

State Sen. Loretta Weinberg, D-Bergen, introduced a bill in February cutting the maximum rate to 10 cents per letter-size page and 15 cents per legal-size page.

Her proposal would clarify that bills and financial records that are supposed to be immediately available should be provided within three hours or by 10 a.m. the next morning if requested after 2 p.m.

Arkansas already requires records to be produced immediately if they are easily available or within three days if they are in storage.

While New Jersey exempts the state Legislature from providing documents under OPRA, North Dakota and other states do not.

Georgia does not exempt personnel records as New Jersey does, and Kansas does not exempt the executive branch as New Jersey does, according to the Reporters Committee for the Freedom of the Press.

Florida, which puts numerous records online, and the rest of the states have something in common with New Jersey.

“As it is everywhere else,” Florida International University journalism professor Neil Reisner said, “there’s a huge difference between theory and practice.”

New Jersey open-government advocates hope to narrow that difference.

Staff writer Emily Previti contributed to this report.

Contact Daniel Walsh: 856-649-2074 DWalsh@pressofac.com

(NOTE: Emily Previti’s contribution was her interview of Mike Assad, a source from her beat.)