Government Transparency Measures Die Again

Two pieces of legislation that would bolster government transparency were killed off on November 15 when they failed to win approval from a Senate Committee. The bills, S-379 and S-380, would have strengthened the Open Public Meetings Act (OPMA) and the Open Public Records Act (OPRA), to make government meetings and records more accessible to the public.

Both measures were killed off in the Senate’s State Government Committee, which has five members and thus requires three votes in favor for a bill to advance.  On each bill, the two Republicans, Samuel Thompson and Vincent Polistina, went first and voted “no.”  They were followed by Senator Linda Greenstein, a Democrat who was substituting for Committee Vice-Chair Dawn Addiego but did not even show up, instead leaving word that she abstained on both bills. With no hope of three ‘Yes” votes, the other two Democrats on the Committee, Chairman James Beach and Shirley Turner, did not have to cast a vote either way on the bills. Following mention of Greenstein’s abstention on S-379, Beach reacted “so the bill does not come out of committee.” And on S-380, he said “Therefore, it does not come out of committee.”

It seemed a cowardly way to kill the legislation, with no Democrat having to go on record as opposed to greater transparency, while stopping the bills in their tracks and probably for the foreseeable future, given the imminent retirement of primary sponsor Loretta Weinberg.

The bills, in some form, have been kicking around the Legislature for more than a decade.  As far back as 2010, Weinberg introduced S-1351 (OPMA) and S-1352 (OPRA), and some version of them has been introduced in every session since then.

I wrote about an earlier version of Weinberg’s OPRA bill on this blog in 2017. Joining her as a cosponsor of S-1046 was Republican Joseph Pennacchio. In the Assembly, Democrat Gordon Johnson and Republican Erik Peterson cosponsored counterpart bill, A-2697. On that go-round, after sitting more than 16 months in the Senate State Government committee (where open government bills apparently go to die), S-1046 was transferred to the Senate Budget and Appropriations Committee which reported it out of committee in June 2017 without recommendation. The vote was 7 in favor, 1 against and 5 abstentions. Notably, the abstainers included Greenstein (her m.o.?) and fellow Democrat Patrick Diegnan, along with Republicans Anthony Bucco, Samuel Thompson and Jennifer beck, while the lone “no”  vote came from Jeff Van Drew, back when he was a Democrat, while the “yeses” included two Republicans, Steven Oroho and Kevin  O’Toole.

In all of the six legislative sessions, including this one, in which the bills have been introduced, neither has ever made it to a floor vote. Weinberg persisted, repeatedly reintroducing the bills and negotiating with the stakeholders –municipalities, school boards, county clerks, etc. – in an effort to craft a workable resolution, but to no avail. And soon she will be gone.

If Weinberg, an experienced, influential and popular lawmaker who during her last few years served as Senate Majority leader, the second most powerful position in the Senate, could not get these long-overdue transparency reforms passed during her tenure, it is hard to imagine how it will get done after she leaves.

The only person to testify regarding the bills on Nov. 15 was John Burns, Senior Legislative Counsel for the NJ School Boards Association, whose members are subject to OPMA and OPRA. Burns told the committee that he had not seen the latest draft of either bill and regarding S-380, the OPRA bill, could not support it because of its attorney fees provision.

The legislation would have furthered government transparency in multiple ways listed below. Read through the list and ask yourself why your legislators have been unable and/or unwilling to pass this legislation.

Among other improvements, the OPMA bill, S-379, would have:

•             Added to the definition of “public bodies” subject to the law “an independent authority, redevelopment entity, or improvement authority, as well as any quasi-governmental agency,” as well as the New Jersey League of Municipalities, the New Jersey Association of Counties, the New Jersey State Interscholastic Athletic Association, the New Jersey School Boards Association, and the Educational Information and Resource Center, and any joint insurance fund, or JIF (entities which provide property/casualty insurance to many NJ counties and municipalities) established by two or more public bodies,

• Required public bodies to permit taping/recording/photographing/broadcasting of all public meetings by any member of the public or news organization

• Required public bodies to have written policies to maximize public participation and include it on their websites and meeting agendas   

• Added the explicit right to review minutes and recordings of public meetings

• Required meeting notice and agenda to be posted on a public body’s website, if any, and that such notice state the estimated starting time of the open portion of meeting and that agendas include a description of the items to be acted/voted on and for contracts, the names of the parties and approximate dollar amounts.

• Prohibited public bodies from acting on any item not listed in the agenda but an item could be added during the meeting “when necessary to deal with a matter of such urgency and importance that a delay for the purpose of providing adequate notice would be likely to result in substantial harm to the public interest,” and provided the minutes contain a statement explaining the reason for adding new items to the agenda, why the item did not originally appear on the agenda, and why delaying consideration would likely result in substantial harm

• Required notice that attachments and appendices to agenda items were available and on request, an electronic copy would have to be provided, and for requests made within 24 hours of a meeting, provided at the meeting  

• Required subcommittee meetings be open to the public too

• Prohibited private communications among public body members during meetings via email, instant messaging or other technology or by way of staff or counsel

• Required at least two days’ written notice of a public meeting at which employment—hiring, termination, promotion, discipline, etc. to any officer, employee or other person who would be adversely affected

• Specified that in those few types of instances in which the public could be excluded from meetings, such as on matters confidential by law or where release of info would impair the right to receive funds from the US govt and on collective bargaining, the ability to exclude should be strictly construed and also provided that the public could not be excluded from a discussion of actual/executed contracts except for closed sessions to consult with legal counsel about current or likely litigation

• Required that when the public is excluded it must be by resolution stating the “reasonably specific” subject to be discussed and the “reasonably specific” basis for the exclusion

• Required not just minutes but comprehensive ones that include portions of meetings where the public was excluded and that show all motions made and who made and seconded them, along with every vote and stated reasons therefor, plus the identity of all members of the public who spoke and a summary of what each said    

• Required minutes be publicly available ASAP and no later than 15 days after subsequent meeting but 20 days for towns under 5000 population, school districts with fewer than 500 students or public authorities with less than $10 million in assets, with the time limit extendable due to emergency such a fire, flood, power failure, war and riots

• Required public bodies with available, functioning sound recording devices to use then to record all pubic portions of meetings and keep those recordings for a time set by the State Records Committee in case needed for litigation, with such recordings also to be made available in unedited form to the public, within 5 days after the meeting and with any edited version to be so labeled and not considered official or authentic

• Authorized reasonable attorneys’ fees paid for by the public body to the prevailing party in a suit over an OPMA violation,

• Authorized suit for violation of OPMA to be brought by the AG, county prosecutor or ay member of the public

• Increased the fine for first-time OPMA violations from $100 to $250 and up to $500 for subsequent offenses, to be paid from the personal funds of whoever committed the violation with an express prohibition against use of public or campaign funds  

• Required the Department of State to set up a website with information about public hearings and meetings of state agencies

• Required public bodies to at least quarterly review any minutes withheld from the public to see if they can now be made available and, if so, to provide access

• Provided for removal of a public body member with two or more OPMA violations “that result in a significant denial of the public’s right of access as determined by a court of competent jurisdiction

The OPRA bill, S-380, would have renamed the law the “Martin O’Shea Open Public Records Act,” a fitting tribute to the open government advocate from West Milford who died in  2011. Other highlights of that measure are that it would have:

• Specified “electronic transmission” as one means of access to records  

• Expressly made OPRA applicable to all members of the “public” instead of just “citizens of this State”

• Protected personal privacy by requiring redaction of debit card numbers, bank account information, precise date of birth, unlisted cell phone numbers, email addresses, information provided by drivers regarding insurance claims and certain information about minors

• Expanded the definition of “public records” to cover certain records related to carbon emission auctions and charter school applications as well as EZ pass records for vehicles owned by public entities

• Expanded the definition of “public agency” to include school districts, charter schools, the NJ League of Municipalities, the New Jersey Association of Counties, the New Jersey School Boards Association, the New Jersey State Interscholastic Athletic Association, joint insurance groups (JIFs) which provide property/casualty insurance to many NJ counties and municipalities, quasi-governmental agencies and public employees acting in an official capacity.  

• Provided that records custodians who claim information is exempt can redact it but not otherwise alter the document and must then provide access to the redacted record along with a written statement explaining what pages are redacted and the statutory or other basis for the redactions

• Provided that records custodians should notify requesters when records are maintained in electronic format and can be emailed without cost unless a printed copy was requested and allowed the requestor to ask for a printed copy instead subject to a special charge  

• Provided that when a requested record is maintained on a public agency website the requester can be instructed to obtain it there so long as the specific online location is provided, though the requester would retain the option to get a copy directly from the agency subject to a special charge

• Prohibited the agency from denying a records request because not made on the official form so long as the request contained all the required information  

• Required notice to the public that info provided on official forms may be disclosed unless exempt

• Created an exemption for information, including location, of private and public alarm systems and surveillance cameras

• Required records requests made for commercial purposes–defined as those intended to generate a profit but excluding news operations as well as educational, scientific, scholarly, or governmental organizations, to certify to that fact, but without having to specify the exact purpose of the commercial use. A special administrative charge could be imposed on such requests on top of duplication cost. Failure to indicate the commercial nature of the request would carry a $500 civil penalty increased to $1,000, then $2,000, if repeated  

• Authorized injunctive relief for failure to provide access  

• Reduced Government Records Council (GRC) public members from 3 to 2, one experienced with news media and the other as a state government records custodian, plus added 5 more members based on recommendations from legislative leaders, the Municipal Clerks’ Association and NJ Press Association  

• Set a 150-day deadline for GRC decisions and required the GRC to post online the recommendations it will consider in a particular case 24 hours before it met, and to provide copies at the meeting complete with any intervening changes or additions

• Required the GRC to provide on its website a searchable index of its opinions including whether or not superseded by a statute or invalidated by a court

• Specified that certain personnel records are not shielded from disclosure—those pertaining to a public employee’s education and training, work location, phone number and job description; those pertinent to the factual basis for a final disciplinary action; those pertaining to settlements of lawsuits or claims except that specific factual details of sexual harassment, sexual assault, domestic violence and  rape by or against public employees  and the identity of the victim could be deleted or excised where disclosure would violate a reasonable expectation of privacy so long as that deletion or excision was  indicated in a statement  

• Changed the standard for liability for civil penalties for OPRA violations from unreasonable denial to grossly negligent or willful and knowing and specified the penalties were to be paid from individual employees’/custodians’ personal funds  

• Established a $500/$1000 civil penalty for commercial requestors who failed to certify to that fact

• Limited the power to exempt records by way of executive order or regulation to what is specified in the statutory exemptions   

• Authorized protective orders limiting the number and scope of requests or other relief deemed appropriate where records requests were made for the purpose of harassing an agency, which would have to be shown by clear and convincing evidence

• Required that the state’s open data website include info about annual expenditures, revenues, indebtedness and liabilities  

• Established a New Jersey Local Public Finance Internet Website Development Program to provide advice and technical assistance to local government units that elect to design and develop, maintain and operate a single, searchable local public finance Internet website

• Established an Open Public Records and Transparency Act Study Commission to review implementation of the OPRA reforms and make recommendations for legislation to improve, expand or facilitate OPRA

• Required the Attorney General to adopt a policy governing the use of any mobile video recording system