Bills Seek to Update Government Transparency; Municipalities Take Opposing View

COURT HOUSE – Municipalities across the county are registering their opposition to state Senate bills (S1045 and S1046) that seek to expand and modernize government transparency laws. Governing bodies in Avalon and Cape May recently passed resolutions urging the defeat of the bills.
State Senate Majority Leader Loretta Weinberg (D-37th) is leading the effort to update the Open Public Records Act and the Open Public Meeting Act. Opposition to the bills has been strong from the New Jersey League of Municipalities and the New Jersey Municipal Clerks Association.
Support for the measures is coming from advocates of open government including the New Jersey Foundation for Open Government and the New Jersey Press Association NJPA. (The Cape May County Herald is a member of NJPA).
The seeming bureaucratic minutia of such legislation often leads to little public interest this early in the legislative process. The bills have a potential for significant impact on the function of local municipal government.
What the Bills Do
The Open Public Meetings Act, commonly known as the Sunshine Law, became effective in January 1976. It affords the public the right to attend meetings of public bodies.
It requires adequate notice of such meetings along with agendas. The law defines which public bodies are subject to Sunshine provisions.
The Open Public Records Act, commonly referenced by its acronym OPRA, took effect in January 2002 when it replaced the previous right-to-know law. 
The act states “government records shall be readily accessible for inspection, copying, or examination by the citizens of this state, with certain exceptions, for the protection of the public interest.”
The new bills would strengthen agenda notice provisions limiting last-minute additions and bring quasi-government agencies under the act as public bodies. These might include The League of Municipalities or the Joint Insurance Fund.
The bills would increase access to supplemental material often not included with but referenced in meeting agendas. Public comment periods for meetings that act on public issues would be required. The bills would also require greater access to deliberations of public issues.
The scope of materials subject to OPRA would be expanded with the bill’s sponsors saying the new acts bring the definition of those materials into the digital age covering computer records and image and video material.
Also, the bills would establish a mechanism for recovery of fees and expenses if a member of the public pursued a successful action for failure to follow the laws.
The bills would also reconstitute the Government Records Council (GRC), the group that rules on disputes regarding access to materials. The GRC would be expanded and made more independent of the Department of Community Affairs.
Opposition
Opponents of the bills point to another “unfunded mandate” from Trenton, arguing that the bills would place heavy burdens on municipal clerks which could only be funded through local taxpayer dollars.
The League of Municipalities stated unequivocally that new expenses would find no “revenue source other than the property tax.”
Resolutions passed by many municipalities in the state cite fears of increased harassment from “confrontational individuals who submit voluminous requests for no legitimate reason.”
These same resolutions decry rules that would “create impractical and burdensome requirements with respect to a subcommittee and working groups established by the governing body.”
As these resolutions were considered and passed in Avalon and Cape May, the governing bodies were warned of the proposed bills’ consequences. 
In Cape May, Solicitor Frank Corrado said the bills would not improve transparency. He said they would make it harder to set agendas and make it more difficult for the governing body to have meaningful deliberations among themselves in non-quorum groups.
“They represent an added expense without concurrent benefit,” Corrado said.
In Avalon, Assistant Business Administrator James Waldron repeated many of the same warnings and went so far as to say the bills might “call into question” indemnification provisions that protect government officials in situations where “good faith” mistakes occur.
In both local cases, the resolutions opposing the bills were unanimously passed by the municipalities.
Support for the Bills
Advocates of the bills argue that too much has changed since the laws were enacted and modernization is necessary. They point to the fact that the courts have increasingly stepped in where the laws are currently vague or fail to provide clear direction.
New Jersey courts have recently ruled in areas of access to electronic records, non-resident rights to use OPRA, the ability of agencies to bring suit against requesters and access to police records.
Advocates of the bills warn of greater court involvement if the bills are not brought up to date.
The NJPA stated opposition to the bills is based on misreading or deliberate misstatements by government bodies that would find themselves subject to the new rules.
The association claims the bills provide protection from harassment that is greater than what currently exists.
The NJPA defends the bills’ provisions regarding deliberations with subcommittees noting that governing bodies often merely vote on recommendations in public with no access to the deliberative process. 
In such cases, “the public is left in the dark” on what ultimately led to the recommendations.
Advocates for the measures point to aspects of the bills that, they say, would reduce the burden on clerks and municipal officials. They also claim that the bills place no financial burden on the towns that do not already exist.
Supporters argue that the bills are being demonized by groups like the State Clerks Association and the League of Municipalities. They point to the fact that the resolutions being passed are identical in Hackensack, Avalon and Cape May.
The NJPA concluded, “The bills reflect major improvements and advancements in both government transparency and the public access to government records.”
Expectations
The Senate bills have emerged from committee, but Assembly bills have not yet done so. No vote is expected until after the November general election.
In Avalon, Waldron said “The fact that these bills still only have two sponsors speaks volumes,” indicating his feeling that the bills stand little chance of becoming law.
For her part, Weinberg, who has been pushing for these changes for years is showing no signs that she is ready to give up that fight.
To contact Vince Conti, email vconti@cmcherald.com.