The Town Crier - Legislative Backgrounder

This post is the second in a series of blog posts to detail the amendments proposed in S-106, which amends the Open Public Meetings Act, and S-107, which amends the Open Public Records Act. 

Proposed legislation:

S-107 section 3 amends the definition of “government record” or “record” to include the following records:

• Electronic (this merely codifies current interpretation of records),
• Video recordings,
• audio recordings,
• any record “required by law to be made, maintained or kept on file,”
• any record that has been received by any public employee or public agency in the course of official business
• allowances sold at auction pursuant to the Regional Greenhouse Gas Initiative (N.J.S.A. 26:2C-45 et seq.) or any similar greenhouse gas initiative, which will not be considered a trade secret, including:
  • the auction clearing price for each allowance;
  • the identity of the winning bidder; and
  • quantity of allowances obtained by each bidder,
• records containing the names of reviewers of grants, donations, gifts or applications made to a public agency,
• names of reviewers of charter school applications, which the names cannot be redacted, and
• EZ pass, or substantially similar, records for vehicles owned by the public entities, other than law enforcement usage.

We would note the following:

• Section 6 of S-107 provides that prevailing attorney fees are not awarded for records required by law to be made, maintained or kept on file and do not exist at the time of the request if both:
  • The failure to make, maintain, or keep the record is due to mere negligence or no fault on the part of the public agency, and
  • The requester was informed in a written statement by the records custodian that the record does not exist or no longer exists, the specific efforts taken to obtain the record, and why the record could not be produced.
  • S-107 section 9 provides that no public official, officer, employee or custodian will 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 availability of the record is a result of the knowing and willful actions or gross negligence of the person
  • In addition, section 9 also defines “grossly negligent” as “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.”
  • Government Records Council Decision, 2005-49 (Pusterhofer v. NJ DOE), a benchmark decision, found that the custodian was not in violation of OPRA as “the Custodian has certified that the requested record does not exist. Therefore, the requested record cannot be released, and there was no unlawful denial of access.”  

We note the following concerns:

• While not subject to a fine, a municipal clerk would violate OPRA for not providing a record that was required to made (old budget, minutes) but which cannot be located in the archives.
• This definition of expansion goes against the entire intent of OPRA. OPRA was signed into law to provide access to records in the possession of the government, not to provide access to records that do not exist.

The League of Municipalities is a strong proponent of openness and transparency in government; however, we must continue to oppose both S-106 and S-107 as neither addresses the considerable expenses municipalities currently incur and will incur under the new provisions.  Currently complying with the Open Public Records Act (OPRA), municipalities have hired additional staff, continue to incur increasing legal expenses to ensure compliance, and expend funds defending litigation based on existing Government Record Council (GRC) and conflicting case law.  In addition, some of the new provisions fail to take into consideration the impact on municipal operations or the privacy rights of our residents.

Contact: Lori Buckelew, Senior Legislative Analyst, lbuckelew@njlm.org, 609-695-3481 x112.