by Terrence T. McDonald, New Jersey Monitor
New Jersey reporters were not stunned this week to learn, via a state comptroller report, that the body tasked with adjudicating disputes over public records is underfunded and slow, leading these disputes to stretch for an average of nearly two years.
There’s a lot to dislike about the Government Records Council — I went to them once and decided, after it took more than a year to resolve my dispute, it would be pointless to try again.
Whether the cause is it’s understaffed and underfunded, or it’s naturally slow because it’s a government agency in New Jersey, I don’t know.
What I do know is a chief cause of many delays is lower on the government food chain: officials in towns, counties, and other public entities who decide to initiate fights over public records by not following the law.
I took a look at some of the disputes decided recently by the Government Records Council. Here are some:
A former Ridgewood councilman asked on March 11, 2021, for four invoices submitted to the town. Instead of delivering the invoices the town had — the Open Public Records Act specifically notes that invoices can be redacted but must be disclosed — the town asked for a weeklong extension, then scheduled a call with the requestor to discuss the matter, then claimed it couldn’t release the invoices it possessed because the council hadn’t approved them first. The two sides went back and forth until the requestor complained to the GRC, which issued an interim order partially in his favor on June 28, 2022. Four hundred and seventy-four days, all over four documents.
A lawyer on June 7, 2020, asked the Essex County Prosecutor’s office for an arrest report pertaining to a criminal case (the lawyer even provided the specific indictment number). The records custodian claimed the arrest report could not be disclosed, and it took a GRC order to get the prosecutor’s office to email the lawyer the report on June 8, 2022. That’s 731 days for one document.
A guy in Woodlynne asked the town on June 18, 2020, for the job application and resume for a police officer. Instead of sending the resume — a McGreevey-era executive order says resumes for public employees are public records — the town’s records custodian claimed the document was exempt from release and privileged because of an investigation into the officer. The GRC issued an interim order demanding the release of the resume on April 26, 2022 — 677 days after the request. We’re talking about one piece of paper.
I could go on.
Some of the disputes the GRC hears are legitimately about complicated records disputes where it’s conceivable local officials think they are in the right. And some aren’t entirely the fault of public officials.
One guy obtained the records he wanted from Berkeley Township, but he took the case to the GRC anyway because it charged him $4.25 for copies and he claimed the law authorizes only a $2.20 payment. The GRC has enough on its plate to waste time on a two-dollar-and-five-cent dispute, even if the guy was right (the GRC said he wasn’t).
But invoices, arrest reports, resumes … these are all obviously public records and anyone who is a records custodian should know it. If they don’t, someone else should have their job.
The state could also be a better role model here. In January, our Dana DiFilippo filed a public records request with the state for documents detailing legal settlements the state made in 2021.
The state asked for extensions for months — which we didn’t always agree to — and finally delivered the records on July 8.
The response was two Excel files. If this is the urgency with which the state treats the Open Public Records Act, why should counties, towns, and the state’s countless public agencies act any differently?
I talked about all this with John Paff, one of a number of people in the state known for their success in prying public records out of the hands of unwilling clerks.
Paff handles most of his OPRA disputes in court because, as the comptroller’s report says, it’s quicker getting a judge to settle a records fight than waiting for the Government Records Council to act.
Paff said New Jersey might be better served if the Legislature took away the council’s adjudicatory power and let it focus solely on, say, issuing advisory opinions that spell out what documents are and are not public.
The Legislature gave the council that power and it doesn’t use it.
“It was supposed to be this nimble, fast thing that was supposed to help citizens out and it’s turned into some Soviet, byzantine process,” he said.