Sunday October 21, 2012, 7:00 AM -BY WALTER M. LUERS-The Record-Walter M. Luers is an attorney in Clinton whose practice focuses on OPRA litigation.
THE SUPREME COURT of New Jersey recently wrote that the Legislature, which enacted the Open Public Records Act, “understood that knowledge is power in a democracy, and that without access to information contained in records maintained by public agencies citizens cannot monitor the operation of our government or hold public officials accountable for their actions.”
These words continue to resonate with me as I read and hear some clerks and records custodians complain about their duties under OPRA.
OPRA is a fundamental way by which members of the public may monitor the actions and decisions of public officials. Public officials and employees are supposed to act in the best interests of the public, hold the public’s trust and be guardians of the money and responsibilities that are trusted to them.
Who will guard the guardians?
But who will guard these guardians in the performance of their duties? At all levels of government, there are countless government functions that are performed without any oversight, auditing or inspection.
While certain offices of state government are charged with ferreting out waste, fraud and mismanagement, the size and scale of state, county and municipal government plus myriad authorities, commissions, schools and colleges are too vast to be consistently overseen by any one office.
Therefore, in the words of the state Supreme Court, the duty to “monitor the operation of our government or hold public officials accountable for their actions” falls to the citizens. And the best way to hold government accountable is through OPRA requests.
Through OPRA requests, concerned citizens can account for spending; gain access to and review meeting minutes; be a check on nepotism; alert authorities to suspected fraud, waste or abuse, and otherwise act as watchdogs.
In New Jersey, such watchdogs as well as ordinary citizens have uncovered instances where public officials, clerks or employees have failed to file mandatory financial disclosure statements or have not complied with New Jersey’s Sunshine Law that requires meeting minutes to be drafted and approved so that the public may know what actions are taken at those meetings. They have uncovered instances of the settlement of lawsuits against municipalities that otherwise would not have been brought to the attention of the public as well as the use of unlicensed entities by municipalities and many other illegal or unethical actions or mismanagement.
The role of clerks and records custodians is also critical. One of the clerk’s fundamental roles is providing information to the public.
In light of the necessary and indispensable role played by citizens in monitoring government, clerks and records custodians who provide public information, I would say the following to those municipal clerks and records custodians who grumble about the burdens of OPRA:
First, stop complaining. OPRA serves a critical public purpose. Complaining demeans the office and gives all who are not government insiders the impression that openness, transparency and candor are not valued by government. Adding to that impression is the fact that I’ve never heard a clerk complain about having to process another pet license or application to hold a yard sale.
Second, put your town or agency’s documents online. Now. And not just the documents that no one wants, either. If check registers, bill lists, vouchers, executive session meeting minutes and executed financial disclosure forms were online, much grief would be saved on both sides.
Third, use the tools that OPRA gives clerks to manage their OPRA requests. If a clerk is overwhelmed by requests, seek extensions of time to respond. If a request would disrupt a municipality’s operations, work with the requestor to narrow the scope of the request.
Fourth, err on the side of transparency. Since OPRA allows a person who is wrongfully denied access to records to recover reasonable attorneys’ fees, avoiding litigation will conserve the resources of the public agency.
Fifth, develop methods of handling the volume of requests from corporations. This is an attainable goal, since corporate requests tend to be predictable, such as requests for traffic ticket summonses and accident reports.
When clerks and records custodians faithfully and consistently honor their obligations under OPRA, they will be rewarded with less litigation and an increased confidence in the transparency of government.