Transparency in NJ Had a Near Death Experience – What Now?

Now that there has been a pause to overhauling OPRA and OPMA – let’s take the opportunity to make both laws better.

I would argue that one of BHCW’s most significant accomplishments is the normalization of OPRA requests in our community. It wasn’t too long ago that neighbors would post the OPRA requests of other neighbors in some weird attempt to shame them for wanting to know what government leaders were up to.

Government bodies create so many artificial limits to prevent you from knowing what our Administration and BOE are doing that OPRA and OPMA have been the only way this community learned the truth about the most significant decisions over the past three years.

One example is the Berkeley Heights BOE and its use of committees. One change I have repeatedly advocated for these past two years is public access and video taping of BOE Committee Meetings.

In our District, at least, Committees have become a way to subvert OPMA and hide important decisions from the public. The wake-up call surrounding this District’s abuse of both these laws came with the incredibly botched reconfiguration. The community discovered that the reconfiguration was discussed in multiple committee meetings. The plans surrounding reconfiguration discussed in committees were poorly recorded and not shared publicly, blind-siding stakeholders and staff with major changes in a 2-month period.

As recently as a few weeks ago we discovered committees were now making decisions concerning Requests For Proposals and the public response prevented the BOE from violating the law yet again.

The only items with a legal basis for closed session meetings are few and far between. Confidential matters cannot be the reason the BOE gives for not allowing public access to committees because such matters shouldn’t be discussed in committees – that’s the point of executive session.

Everything else can and should be discussed publicly.

The defense used by members of not just our BOE but government bodies throughout NJ is laughable.

“Well, if people knew about it, change would never have happened.”

That’s sort of the point. In free societies, the public has a right to try to stop you from making terrible decisions, even if you think they are awesome. Our system of government (from the top down) was built for change to be slow – on purpose – so that people and systems have an opportunity to evaluate change. It is an anchor against corruption and harmful, impulsive decisions.

It is precisely why these laws exist.

Moving onto OPRA, our BOE and government bodies, in general, will have you believe that OPRA requests are harming Districts. What they won’t tell you is the very reason OPRA requests even exist has to do with the very problem we discussed above – decisions being made in committees the public has no access to. How else will the public know about important decisions and how they were made – are we to trust what government leaders tell us simply? Are we to assume that whatever decision they made and the process they used in making it had to be the very best available?

The truth about OPRA (and OPMA), as Shauna wrote last week, is that despite having noble goals, it is a weak law. Government bodies often delay, redact, and deny illegally with little consequence. Even when they lose OPRA cases, it’s months- at times years- after the information is of any use, and since it is not their money they’re using but yours – it’s an effective way to prevent the public from finding out about important matters until after elections, resignations, retirements or contracts being signed.

The penalties for OPMA violations are laughable – in Union County, if you are lucky, OPMA violations are responded to by a prosecutor sending a letter to a government entity outlining how fantastic they are at complying with OPMA while suggesting recommendations for compliance – because they aren’t so fantastic.

Last month, journalists and open government advocates came together to inform government leaders of the importance of OPRA and OPMA , and to caution that they step away from gutting these laws during a lame duck session.

Thankfully, it appears that they listened.

However, it is not enough.

We should not be gutting OPRA or OPMA – we should be making both laws stronger and more meaningful.

The following is copy from an email I sent to State Senators Scutari and Sarlo thanking them for pausing any changes to either law with suggestions on how to improve both:

Dear Senator Scutari and Senator Sarlo,

I was happy to read Sen. Sarlo’s recent statements that legislators are planning to pause on reforms that would have negatively impacted journalists and open-government advocates. I am relieved and grateful that representatives heard our concerns and will take a more deliberate approach. I also want to thank Mayor Devanney for her support in expressing our concerns to Sen. Scutari.

As Mayor Devanney will tell you, however, I am a significant pain in the ass.

Now that there is evidence of a pause, I would like to offer my suggestions on how to improve both of these laws that would improve transparency and resolve concerns connected to volume.

OPRA

• Reforms to OPRA should include requirements that municipal governments and Boards of Education post the following items on their website as an automatic:
  • Minutes of All committee meetings (including copies of work product)
  • Bill Lists and Transfers Reports
  • Correspondence from the community to Councils and Boards as a whole
  • Budget Documents

• GRC decisions have made the 7-day requirement optional; for example, our school district has been extending requests for seven weeks on superficial items like committee meeting minutes. Perhaps consider extending time frames to two weeks but making that time frame a firm line with more significant penalties for non-adherence. See an article that offers a snapshot of this issue with our own Board of Education here (https://bhcommunitywatch.com/2023/12/22/ho-ho-ho-laughing-all-the-way/).
• Establish a standard upon which municipalities and Boards of Education can request payment. This is another area I feel is abused by government agencies where costs are made up to create disincentives for requestors. For example, any request requiring a reasonable person to take more than 5 hours to complete would incur a charge. Also, disallow organizations from including redactions and lawyer reviews from that time frame as that is often a choice organizations make to overly redact information from documents that should be provided to citizens.

OPMA

• Require that Township Council and Boards of Education committees allow for public access to meetings and require that they tape committee meetings and publish these recordings. This would reduce OPRA requests for minutes and ensure that minutes are accurate (an issue with our school district)
• Require that FULL DETAILED Budgets being voted on for approval during public meetings be posted seven calendar days before a meeting. This would reduce OPRA requests.
• Require that all materials and presentation materials be posted with meeting agendas 48 hours before a meeting. This would reduce OPRA requests.
• Provide the same benefit on fee shifting available for OPRA when an entity violates OPMA. This would ensure greater compliance with OPMA.

These changes would make both laws more meaningful and effective.

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