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Guest Column
Joseph Tyrrell
State neglects to fulfill OPRA law during first year
New Jersey failed to fulfill the full promise of its new open public records law during the landmark law’s first year of operation

The New Jersey Foundation for Open Government (NJ FOG), a nonpartisan coalition of civic, journalistic and public interest organizations, said the state of New Jersey has failed to fulfill the full promise of the landmark Open Public Records Act (OPRA) that went into effect on July 8 of last year.

In a statement approved by its board of directors on July 2, NJ FOG said implementation of the new law by records custodians at all levels of government went more smoothly than expected, but the state agency set up to resolve public complaints about access to records is plagued by excessive delays and a growing backlog of unresolved disputes.

NJ FOG knew it would take some time for the new Government Records Council to get up and running, but it’s been a year now and we’re not seeing much progress. In fact, according to the council’s own figures, it has a backlog of 83 unresolved complaints, almost as many as the number of cases it has resolved since its creation. Instead of using the streamlined process set forth in the law, the GRC is using cumbersome procedures that slow things down. That’s unacceptable.

According to the GRC’s latest monthly report, the number of active cases awaiting resolution by the five-person council and its staff was 83 as of June 10. The report said the council has resolved a total of 96 cases, including 26 that were withdrawn.

"Understaffing is another problem. At the current rate, it will take the council months to resolve the cases that are before it now, not to mention the new complaints that will be added during that time. In some cases, they’re still working on complaints that were filed last summer," said Guy Baehr, NJ FOG’s corresponding secretary.

NJ FOG, which worked hard for creation of the council as part of OPRA and has monitored its operation over the past year, said the Legislature created the council to provide citizens seeking public records with an alternative method to resolve disputes that would be quicker and less expensive than filing a lawsuit in state Superior Court. "So far, what we’ve seen is that the cases that have gone directly to court have been resolved more quickly than those that have been decided by the council," Baehr said.

The Government Records Council was modeled after Connecticut’s 30-year-old Freedom of Information Commission, which takes an average of 10 weeks to resolve formal complaints that go before the commission.

"The data included in the GRC’s monthly reports does not permit us to calculate the average time it takes the council to investigate and decide a citizen’s complaint here in New Jersey, but it’s safe to say that it’s at least double the 10 weeks it takes in Connecticut. That’s not at all what the Legislature intended. The people of New Jersey deserve more than a shoestring operation to ensure their right to know," Baehr said.

The NJ FOG statement said two factors seem to be causing the delays and adding to the backlog:

• Severe understaffing — the GRC, which operates as part of the State Department of Community Affairs, currently has a staff of seven, including one full-time and one part-time deputy attorney general. By comparison, the Connecticut Freedom of Information Commission has a staff of 16, including seven attorneys.

In addition, the GRC still does not have a permanent, full-time executive director. Marc Pfeiffer, who has headed the staff since the GRC’s creation, works in a part-time acting capacity while continuing to serve as deputy director of DCA’s Division of Local Government Services.

In April 2002, NJ FOG issued a report estimating that — based on the experience of other states with similar agencies — the GRC would need a budget of $1.2 million a year to adequately meet expected demand.

• Excessively bureaucratic procedures — despite a specific directive in the OPRA legislation to streamline its procedures to make them quick and citizen-friendly, the GRC has evolved an overly complex and bureaucratic system that slows down the process and makes it harder for citizens to use.

One problem is that in an effort to make up for a lack of its own staff, it uses the state’s Office of Dispute Resolution instead of its own mediators to try to resolve disputes. Unfortunately, this has created a bottleneck because the state mediation process has proven slow, cumbersome and ill-adapted to the needs of records requesters. The council is currently proposing to further slow the dispute resolution process by having some cases heard by state administrative law judges under the state’s Administrative Proce-dures Act, something that was not envisioned by the law’s sponsors.

Inadequate resources have also prevented the council from doing sufficient outreach to ensure residents around the state are aware of their rights under the new law, which significantly expanded the number of government records available to the public and strengthened requirements for timely disclosure by government officials.

NJ FOG was founded in January 2001 as a coalition of organizations and individuals committed to increasing people’s access to government records and meetings while protecting the legitimate privacy rights of individuals. It is a nonpartisan, nonprofit, tax-exempt organization. Mem-bers include the League of Women Voters of New Jersey, Common Cause New Jersey, the American Civil Liberties Union of New Jersey, the New Jersey Chapter of the Society of Professional Journalists, the New Jersey Broadcasters Association and the United Taxpayers of New Jersey. It is a member of the National Freedom of Information Coalition.

Joseph Tyrrell is the president of the New Jersey Foundation for Open Govern-ment, Hillsborough