Open Records Council Must Close a Credibility Gap

When New Jersey's Open Public Records Act was passed two years ago, it promised the public two important rights: greater access to government records and the right to complain about government bodies that refuse to hand over their records. The law went a step further in the enforcement of the second right by creating a special agency called the Government Records Council with the job of resolving disputes quickly and informally and without the expense and fuss of going to court.

Unfortunately, the council's track record exposes an internal structure littered with flaws, conflicts of interest, bureaucratic unresponsiveness and an unnecessarily cumbersome decision-making process.

The council has made a few high-profile decisions. But it has made news mainly for its case backlog, which, startlingly, has resulted in the council resolving cases less expeditiously than the courts, and for the remarkable disparity between the minimal penalties it imposes for violations of the law and the penalties awarded by the courts. Record seekers also have discovered that they actually have fewer rights when before the council because, unlike the courts, it does not consider common law in its determinations.

Those factors have caused many lawyers to wonder why we should bother with the council at all. Do we need another bureaucratic body doing the job of the courts but at a slower pace and with amateurs and political appointees who have limited experience acting as judges? Despite recent efforts that have reduced the council's backlog, the only people likely to bring cases before the council are those who cannot afford lawyers or the court filing fees and will therefore be subject to what has become second-rate justice.

In addition to the council's administrative struggles, conflicts of interest pose the greatest threat to the rights of those seeking records. The most troubling example involves the council's decision -- which open records advocates have vocally opposed from the outset -- to use deputy attorneys general as legal counsel. This creates a conflict of interest every time a case involving the Department of Law and Public Safety or any of the state agencies it represents comes before the council. In these case, the department appears before the council both as the party against whom citizens seek relief and as the council's lawyers.

In one example, the council ruled against the Trenton Times after the attorney general's department denied the newspaper's request for the Baron Athletic Association's membership roster, which had been gathered as part of a now-closed criminal investigation. When lawyers for the Times pointed out the impropriety of having the department both as the defendant in the case and as legal adviser to the council, the council dismissed that objection.

Whether the Baron ruling would have had a different outcome had it gone to the courts, we don't know. But we're left to wonder what went into the determination, knowing that the legal advisers to the council are, in fact, employees of the department. By using deputy attorneys general for legal counsel, the council unnecessarily calls its credibility into question.

Fortunately, there is a ready solution, and council members need only look around Trenton to see it. Simply put: The council can hire its own lawyers and maintain its independence.

For example, the Public Employment Relations Commission, which addresses state employment disputes, stopped using deputy attorneys general as legal counsel in the 1970s and hires its own attorneys. Similarly, the Election Law Enforcement Commission, which addresses campaign finance and lobbying law and -- significantly -- is an autonomous part of the Department of Law and Public Safety, hires independent lawyers to avoid conflicts of interest and ensure its credibility.

These agencies further bolster their credibility by having their offices separate from any other government agencies. The council, by contrast, is housed and operates within the Department of Community Affairs. We have already seen how such arrangements can infringe on autonomy, like the department's recent announcement of the appointment of the council's executive director -- a decision that, by law, the council should have made independently.

While some improvements to the council's operations might require legislative revision, this problem does not. If the executive director and the council want to ensure a credible process and make the council relevant, they must demand independent legal counsel. Without this policy change, any council rulings favoring the department and most other state agencies will raise questions of fairness, integrity and trust.

The council will remain under scrutiny, particularly as 200 open- government advocates descend upon Newark in May for the annual conference of the National Freedom of Information Coalition. Conference participants will examine different models for open records laws and government records councils. In many cases, best practices have already been identified; unfortunately, New Jersey's Government Records Council has chosen not to follow them.

-By Deborah Jacobs ACLU-NJ Executive Director

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