July 29, 2005

Gov't Has Advantage in Records Disputes

As Published in the Cranford Chronicle, July 28,2005

On July 8, 2002, the state Legislature passed the Open Public Records Act(OPRA). They also created the Government Records Council (GRC) to oversee complaints against records custodians.

To this date the GRC has not found a records custodian guilty of a 'knowing and willful' violation of OPRA which would lead to the custodian being personally fined by the agency. In lieu of fining custodians, the GRC has been placing violators on their 'Matrix' which imposes a state oversight of how the custodian handles OPRA requests.

I have filed eight GRC complaints against the County of Union since 2003. They were found not to have complied with OPRA 4 times, without rising to a "knowing and willful" violation of OPRA. They have been placed on the GRC 'Matrix' three times to date, with more complaints still pending. A fifth violation was determined recently, and rather than the GRC ruling directly on whether a "knowing and willful violation" had been committed, the GRC referred the case to the Office of Administrative Law(OAL).

By sending this complaint to the OAL the GRC gave an unfair advantage to the county who will be represented by taxpayer funded attorneys, while I can't afford the expense of hiring an attorney to represent me. I find it both ironic and alarming that a government body can use taxpayer dollars against a taxpayer trying to pry information out of them regarding how taxes are being spent.

After much consideration and research I have decided to formally withdraw this OPRA complaint. Dealing with the OAL is beyond the capability of the average citizen. The process requires time that I don't have to give; Iwork, I have a family which includes two young daughters; friends and other interests besides battling Union County for information.

I am an activist who has learned that the cards are stacked against the average person and I think that it will be more productive for me to spend my limited time to continue to work for greater access to records without spending countless hours trying to present a case to the OAL.

In trying to research the OAL process I went to their website where I found several thousand words "summarizing" their rules. The rules themselves are much longer. If I enter into the OAL's system, I'd be expected to know about and deal with motion procedure, discovery rules, rules of evidence, etc. Not exactly enjoyable beach reading. I find this to be the equivalent of handing my 13 year old the keys to my car and with no driving knowledge, directions or gas money telling her to drive to Chicago to pick up grandma.

I have become an active member of the New Jersey Foundation for Open Government (NJFOG). I traveled to Trenton recently to speak at a GRC meeting. After relaying how I felt about trying to present my case to an OAL judge, I asked the counsel to candidly admit that there really is no process that will lead to a custodian being held accountable. It would be much more honest for the GRC to simply tell people that there is no process, than it is to send them into a complex black hole that promises a process that is not in reality attainable.

Members of the GRC admitted their frustration as well; and acknowledged that they would accept an invitation from the Legislature to take a look at how OPRA can be improved. How refreshing to see a government body actually listen to the citizens and be open and willing to work towards better government.

As far as prying records out of the County of Union I can tell you that OPRA and the GRC were helpful for a short period of time. This is no longer true. Just this past month the county gave me a record with a disclaimer "there may be errors or omissions on this document" in regards to an employee's paid days off. This is either incompetence or corruption; either way, as it stands in the State of NJ, there is absolutely nothing a citizen can do about it.

A closed government isn't in the citizens' best interest, and should not be allowed to flourish in a democratic society. The county now spends more than $1 million of our money a day which affects our health, welfare and safety. With this in mind, I will continue to work for greater access to public records.

The GRC cases that the county have been found guilty of OPRA violations are:
2005-5; 2004-191; 2004-162; 2004-136; 2004-110. You can find these ruling on
the GRC's website http://www.nj.gov/grc/