Tomorrow, I’m requesting the Council put forward Resolution 204-2018 to: Call for the Legislature to Amend the Open Public Records Act to Permit Municipalities to Rely on the Government Records Council as a Defense to Attorneys’ Fees or to Abolish the Government Records Council Altogether.
The Open Public Records Act is an extremely important step towards transparency in NJ. It permits residents to seek information from their elected representatives and to know, relatively quickly, what is happening at the municipal and county levels1.
But like any legislation, there are some exemptions and calls to be made. The exemptions are few, with an emphasis on disclosure. If you have an issue regarding an OPRA request, there’s also a place you can turn: The Government Records Council.
Created under OPRA, the Government Records Council:
- Responds to inquiries and complaints about the law from the public and public agency records custodians
- Issues public information about the law and services provided by the Council
- Maintains a toll-free help-line and Web site to assist the public and records custodians
- Issues advisory opinions on the accessibility of government records
- Delivers training on the law
- Provides mediation of disputes about access to government records
- Resolves disputes regarding access to government records
The GRC has a devoted hotline for disputes and one of it’s stated purposes is to “resolve[] disputes regarding access to government records”.
The custodian of records can call for guidance, if needed. The opinions the GRC provides are for the purpose of advising the public and municipalities about how to deal with OPRA related disputes. But that reliance is not a defense for the municipality if the GRC is determined to be wrong, by a Judge.
As an example, in Scheeler v. Ad. Cnty. Mun. Joint. Ins. Fund. N.J. Super. (App Div. May 16, 2018), the Appellate Division rejected a GRC opinion that OPRA contained a citizenship requirement. The municipalities (including neighboring Paramus) that had relied on the GRC opinion, not only lost the case against them, but were also required to pay attorneys’ fees.
In the past, many residents (as well as the town) have had issues resolved by the GRC and several have sued in Superior Court related to denials of access.
The advisory opinions drafted by the GRC in their role of resolving disputes regarding access should be permitted by OPRA to allow municipalities to rely on them as a method of knowing what is appropriate.
If the Township can rely on the decision of the GRC, and still find themselves to be liable for attorneys’ fees and statutory penalties, what exactly is the purpose of the GRC issuing the opinion in the first instance?
Therefore, I am requesting that the township join others (such as Paramus, North Arlington and Ho-Ho-Kus), who have already asked the State to institute a simple and clear reform to OPRA: Give the GRC teeth to advise us or remove it.
Bottom line: If the Town asks the GRC for advice and follows it, we should not be punished for doing so.
204-2018 (GRC OPRA)- I will ignore for the moment, the fact that the State exempts itself from the openness and transparency provided by OPRA.