When bureaucrats are left to reform laws they always seem to be for their own convenience.
So it is with S1451 and S1452 which seeks to update New Jersey’s Open Public Meetings Act (OPMA) and Open Public Records Act (OPRA) respectively which have served New Jersey citizens* well to varying degrees. When I started getting into this government watchdogging about five years ago it was a chore to rustle up something as basic as a budget. Now budgets, audits, check registries, contracts, ordinances, resolutions, and more are online for most government entities and you can ‘OPRA’ practically anything else. That may soon change. Or, more to the point, that shall soon change.
The main proposed change to OPMA is the addition of these lines:
Any party, other than a public body, that prevails in an action brought pursuant to this section may be awarded the amount of reasonable attorney’s fees incurred in bringing the action. The cost of any attorney’s fee awarded by the court shall be paid by the public body.
Whereas previously no mention was made of attorney’s fees under OPMA resulting in very few lawsuits being brought** the proposal says that the judge ‘may’ award attorney’s fees which will likely bring………..very few new cases since someone contemplating an action is unlikely to find a qualified attorney who would hinge his payday on a judge’s whim even if the action prevails and it’s the rare citizen-activist who has the deep pockets to bear the risk with no more incentive than encouraging transparent government.
So it’s a reform that for practical purposes will do nothing. But look at what they are proposing for OPRA:
A requestor who prevails in any proceeding [shall] may be entitled to a reasonable attorney’s fee award.
The way they write these bills is that if you put a word or phrase in [brackets] it was previously in the law and will now be struck whereas if you underline*** a word or phrase it is to be added. The new law would further clarify:
However, in actions involving a record required by law to be made, maintained or kept on file and that does not exist at the time of the request, the prevailing requestor shall not be entitled to an attorney’s fee award if both: (1) the failure to make, maintain, or keep the record is due to mere negligence or no fault on the part of the public entity; and (2) the requestor was informed in writing by formal certification or affidavit by the records custodian prior to the filing of the complaint that the record does not exist or no longer exists, the specific efforts taken to obtain the record and why the record could not be produced.
So we would have judges deciding whether to have public bodies pay the legal fees of OPMA as well as OPRA plaintiffs who prevail whereas it is now required for OPRA . Will this bring far fewer OPRA lawsuits and take away the incentive of public bodies to have open government?
Would that be an [un]intended consequence?
* Another change I noticed in these proposals was the replacement of the word ‘citizens’ with the word ‘people’ thus obviating the need for requestors of public records to attach naturalization papers.
** Of all cases brought under the two acts, 95% are under OPRA per Walter Luers, an OPRA/OPMA attorney and specialist.
*** I can’t figure out how to underline words here so I’m using bold and italics.