The NJ Political Class Wages Yet Another Assault on OPRA and the Public’s Right to Know

May 7, 2024

Yes….This Shit Again.

According to The Jersey Vindicator, Sarlo and company are at it again.

An amended version of the twice-failed bill will be up for committee vote in two days, with a full vote scheduled for May 13th.

Ironically, the provisions on Data Brokers, which Sarlo and company shopped as the main reason for the bill, were removed due to lobbying efforts. Yet one of the most harmful features of the bill to working-class and middle-class New Jerseyans remains- the removal of fee-shifting, which allows those suing government bodies for records to seek legal relief from municipalities and districts who violate the law.

From the Jersey Vindicator

Under OPRA, the “fee-shifting” provision that has existed since the law was enacted in 2002 is what gives the law teeth. Citizens and journalists who prevail in court shall be awarded attorney fees under the law. The OPRA bill introduced in March and amended last week says citizens “may” be awarded attorney fees, leaving the decision about whether or not to award legal fees up to a judge. The amended OPRA bill also requires that citizens prove “bad faith” by an agency to be entitled to legal fees, which would be almost impossible to prove.

Many citizens and journalists can find lawyers to represent them because the lawyer is guaranteed that legal bills, within reason, will be paid if they prevail in court. Lawyers only accept legitimate cases because of this provision, knowing they are likely to win and will get paid for their work. Unlike lawyers for government agencies, who get paid whether they win or lose an OPRA case, attorneys who represent citizens take a risk when they take a case and don’t get paid when they lose. Lawyers for citizens traditionally bill for fewer hours than lawyers for municipalities in OPRA cases.

The possibility of government entities having to pay legal fees is the only real enforcement mechanism that makes most government agencies do the right thing and hand over public records. Without the fee-shifting provision, government agencies could violate the law and keep records private with little or no consequences, basically gutting OPRA. [emphasis added]

If fee shifting had not been in place BHCW would not have been able to inform the public of the following:

The District’s cover-up surrounding the timeline provided by the former Superintendent and the exorbitant amount of money the District pays Attorneys to Review Simple OPRA Requests

Without fee-shifting, residents would have been required to spend $34,000 to force the District to comply with the law in releasing records surrounding the controversy connected to the former Superintendent’s nepotism charge. Without fee-shifting, the District would have simply prevented the release of this information, knowing full well that no resident would pursue the case against its well-funded attorneys.

The current transportation Debacle

After years of asking for clarity on how decisions were made regarding which families received free busing and which families had to pay $1,000, we still have yet to learn how the program has been managed to this point. One resident took the New Jersey Department of Education to court to obtain data submitted by our District and won. Despite a court order, we have yet to receive confirmation that the NJ DOE has complied with a judicial ruling. What are the chances that an everyday working person could afford to get this information on their own dime against State Attorneys?

These are two cases where residents had to take the District and the state to court to get information. However, without the threat of fee-shifting in place, we likely would have never learned about the District’s efforts in hiding the proficiency analysis report last year.

We almost had to go to court to get our own budget, which, according to current law, should have been provided to us immediately. It turns out that several members of our BOE were not even able to view it.

Here is all the information we were able to publish as a result of OPRA, much of which the District could have denied if this valuable tool had not been in place.