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 was theoretically used to track custodians who repeatedly violated the OPRA.
At their November 10, 2005 meeting the GRC announced that they will abandon use of the “matrix”. It appears that the GRC has received a legal opinion that OPRA allows one and only one punitive action: the imposition of civil penalties for custodians who knowingly and willfully violate OPRA in an unreasonable manner. The legal opinion is said to have concluded that other “penalties” such as reprimands, letters of reminders, and use of a “matrix” are disallowed because they are not authorized by the OPRA. GRC Chairman Vincent Maltese remarked that he “reluctantly concedes the point based on advice received.”
I have filed fourteen OPRA complaints against the County of Union since 2003.They where found not to have complied with OPRA four times, without rising to a “knowing and willful” violation. They have been placed on the GRC Matrix three times to date, with more complaints still pending. A fifth violation was determined this past summer, and rather than 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 a complaint to the OAL the GRC gives an unfair advantage to the records custodian who would be represented by taxpayer-funded attorneys, while a private citizen might not afford the expense of hiring an attorney to represent them. After much research I reluctantly conceded that the task the GRC placed before me, which was basically making me a prosecutor, was all but impossible.
Also decided at the November 10 meeting in 2 cases I had before them, GRC Chairman Vincent Maltese harshly criticized Union County's custodian for "being disingenuous" and "engaging in stalling tactics" in the way in which my requests were dealt with. He also said that an accumulation of such "slight infractions" although "annoying at the very least" do not support a finding of knowing and willful misconduct in any particular case.
If engaging in stalling tactics and committing slight infractions of the law, repeatedly over the years, can’t move the GRC to take action against a custodian then what will?
Executive Director Paul Dice said that he may also prepare an advisory opinion concerning the elements that must be proven before a custodian can be subjected to monetary penalties for knowingly and willfully violating the OPRA.
Many states fine records custodians without regard to their knowledge or motive. In Florida, record custodians can be fined for any violation. In Wisconsin custodians can be fined if they violate the law arbitrarily and capriciously. In both situations the custodian’s purported belief in the legality of his or her actions is no defense.
If OPRA is ever to fulfill its promise of providing freer access to government records, the GRC must start using its power to fine violators. To do that, the council will have to specifically outline what is needed for a citizen to prove a knowing and willful violation against a records custodian. This will not only cut down on a citizen’s time and frustration but will also greatly cut down on the cases the GRC would be presented with. Knowing what I know now it is blaringly apparent that the OPRA has been broken from its inception with the GRC lacking either the will or the power to impose the fines that the legislature intended them to.
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. When it became quite apparent that there would be no penalty for their actions the stall and delay tactics became common practice. Especially around election time. I was also given a record with a disclaimer “there may be errors or omissions on this document” regarding an employee’s paid days off. The OPRA does not require government bodies to keep accurate records.
It is little wonder to me that New Jersey is viewed as the most corrupt state in the Union. The OPRA enforcement is another example of our state condoning nefarious government practices that in other states would be considered violations of the law.
The OPRA has become another bad New Jersey joke. Who are the comedians responsible for it, the Legislature or the GRC?
