They Could Take Our Last Tool For Transparency

Legislation being proposed at the state level casts a darkness on government business

-John Leo, Jr.

In four bills just last week presented to the NJ Legislature, A5613-5616, the mechanisms by which the public can gain public records are destined to be severely changed- some good, some bad. OPRA (Open Public Records Act) being the only tool we have to keep our public agencies in check, the bad far outweigh the good and here’s why.

Lets start by looking at the landscape of semi-decent and transparent government.

Even if you imagine a world devoid of nefarious actors, you still have a complex organization of organizations: layers of bureaucracy that require time and effort just to unravel or understand. This complexity in itself requires some means for the public to gain reasonable access to basic information. For instance, people purchasing property use OPRA to gain township records to view records associated with the land sought: liens, permits, etc. 

So few people with the time and patience actively pursue questionable activity when they smell foul play and the use of OPRA to keep people holding the public trust honest is a far more important use of it.

These citizens that do that work we recognize as our whistleblowers. The ones self-tasked with keeping these organizations in check. The police do not enforce these public agencies and their respective laws. If you think about it, police enforce a mere fraction of the legal framework we are bound by in society.  For instance, until a BOE member kills someone, their ethical or moral judgments are kept in check by… you guessed it. Us. Using OPRA.

And that’s it. If there is one thing I have learned witnessing our BHPS with its own questionable activities, it’s that no one is going to save us from us but us.  “Self rescue is the only option” (a favorite meme of mine).

So many of us put a lot of trust into OPRA-able organizations that we interface with daily: public schools, Police Departments, municipality, fire dept, planning and zoning or state university to name most of them.  

In the Berkeley Heights Public School system alone, the use of OPRA uncovered a nepotism violation and half a dozen ethics violations against the BOE and Superintendent within just two years.  All of them, when submitted to the NJ School Ethics Commission found to be substantial.

One of the things I looked into was the bills sponsor. I wanted to know what he thinks about  transparency.

While Joe Danielsen, all four bills primary sponsor, suggests OPRA is outdated and requires this overhaul, one can find quite easily that he is also personally riddled with ethics violations found out by the one and only OPRA and most were found to hold water.

Danielsen says this is a modernization of a twenty year old law and I’m calling BS.

And no better bill section fails the sniff test than this: 

Part of this bill restricts how much attorneys can charge to an OPRA requestor.  Attorneys would be bound by a rate of which they have no control over thus making OPRA cases undesirable business. 

Intentional? That alone promises to destroy damning OPRA violations- falling by the wayside right when the going gets good for our fair patriot, the whistleblower.

The OPRA cases that I’ve seen be the most effective, were so because the attorney offered being paid on contingency or only if they win the case.

Which sounds fair right?  If I feel my OPRA case is kaput, I’ll drop it there. That status quo for billing OPRA clients is effective.  At least, when you’re a champion of transparency.

Its worse for journalists: the champions of whistleblowing.  Being a commercial entity restricts them to two per month according to this bill. Every good investigative piece requires prep work and open public records is the backbone to getting the truth to the public.

On the flip side, (I love providing balance because it reveals the gray areas) the good argument for restricting OPRA is for the nefarious actors that do weaponize it against agencies like the Police Department for political or ideological purposes. We currently are allowed to submit unlimited OPRAs and the agency is usually required to respond even if repetitive. The bill addresses that- though not perfectly (see commercial restrictions above).

Another attempt to control OPRAs, is the need for a formal OPRA form – something that was already deemed inappropriate by the courts therefore going directly against court directive.  The problem with using a form relates directly back to the nature of our problem: no one but us polices these organizations. So if you need a record and the organization isn’t making the form available, from who do you even demand the request from?

Yes this game happens. 

After a few swings, I will give Danielson a lift up: though this one bill seems stuck in committee (A5509) he currently sponsors another bill that would allow townships to increase liquor licenses by relaxing the number allowed based on population. He also sponsors a couple others that would bring NJ into the 21st century for liquor laws.

This is good because residents are going to need a drink while watching a basic liberty slip away such as the ability to access the truth.

This is a collection of BHCW articles written directly as a result of OPRA law.

The facts contained in our articles are irrefutable BECAUSE OPRA backs them and we always do our best to link the source (usually via OPRA) to the article.

The bills in question:

A5613 Makes various changes to process for requesting access to government records for commercial purposes.

A5614 Increases membership of Government Records Council; provides for advisory opinions; requires complaints to be initiated with council; limits attorney’s fees; appropriates $250,000.

A5615Provides for protective orders to limit requests for access to government records in certain cases

A5616 Makes various changes to process for requesting access to government records

My “Final Thought”: I volunteer with a nonprofit that is subject to OPRA. I look at these proposals with the assumption that my work in an organization working with local government would come under scrutiny by the public. Knowing my actions and decisions can be accessed publicly, helps keep me transparent and ethical. Fiscal responsibility, for instance becomes a very important guide because, as with any advocacy, not every Johnny B. Public agrees with your work so you must be beholden to them as well as your avid supporters. OPRA allows such scrutiny and we should defend that.

Current OPRA Law For Reference

To write your representatives about stopping these harmful changes please consider emailing:

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