New Jersey's inscrutable open-records umpire

TRENTON — William Scott Jr. was concerned about a housing development being built near his Montclair home by a politically connected nonprofit. He filed an open records request to try to figure out how the nonprofit secured a big government construction grant from Essex County, even though it applied past the deadline.

His request was rejected by the county. So he appealed to the New Jersey Government Records Council (GRC), which hears such cases. Twenty-one months later, he watched as the GRC voted on his case in a meeting room in Trenton.

But while he heard the voice vote — it was unanimous — he couldn't tell which way it went. The GRC wouldn't tell him if he had won or lost the right to see the documents. It told him he would get a certified letter in the mail in five to 10 business days. He was flabbergasted.

And so was State Sen. Loretta Weinberg (D., Bergen), who was sitting in the audience that April day. She watched the GRC publicly vote on several cases that day but members would not say what each vote meant. It was unclear to observers whether the GRC was approving an appeal, denying it, or doing something else. The result of each vote was secret, the GRC said, until those involved were notified.

The meeting inspired Weinberg to make changes to two bills she had introduced to improve the public's access to government records and meetings. She plans to unveil new versions of those bills at a news conference Thursday, but she offered a preview to The Inquirer.

"We all came out of that meeting absolutely shocked that the average intelligent person could not make heads or tails out of what they were doing," Weinberg said. "When [the GRC member] says, 'I have a motion,' and someone says, 'So moved,' and they ask for a vote, you don't even know what the motion is. You want to talk about non-transparency in a group that's supposed to be overseeing transparency!"

Scott, who was denied the records, said it "was a very strange procedure."

"It was totally, totally confusing," he said.

Weinberg wants to alter the makeup of the GRC, which now entirely consists of gubernatorial appointees — including two of Gov. Christie's cabinet members — even though the GRC regularly rules on document requests rejected by Christie's cabinet departments. An Inquirer analysis shows that excluding frivolous complaints, the GRC has ruled in favor of the Christie administration 44 times. It has never voted against it.

While a GRC rejection can be appealed to court, few do because of the costs involved.

"A legally accurate decision by the GRC in favor of any administration is more an affirmation of the [records] custodians' thorough knowledge of OPRA [the Open Public Records Act] than any indication of political influence of any kind within the GRC," e-mailed Lisa Ryan, a spokeswoman for both the GRC and Christie's Department of Community Affairs.

Under Weinberg's proposal, the GRC would be revamped to include a member selected by the Assembly speaker and another picked by the Senate president. The GRC chairperson would also be protected from being removed by the governor.

And since it now can take more than a year for appeals to be adjudicated, Weinberg would place deadlines on resolving GRC cases.

Weinberg's planned changes to the GRC are part of an overall bill strengthening the Open Public Records Act, which sets guidelines on what documents are public. Weinberg is proposing other changes to that act too, such as mandating that certain documents, including budgets and contracts, be immediately available to the public.

Her bill also would restrict the criteria for protecting "deliberative material" — a catchall phrase that governmental bodies often use to deny requests.

Sen. Barbara Buono (D., Middlesex), a cosponsor of the OPRA bill, said she had no luck when she tried to use the act to get information about a 2010 controversy involving a major federal education grant that the Christie administration lost.

"The law is like a sieve, it's like a paper tiger," said Buono. "I was blown away by how useless the law seemed."

A new companion bill strengthening the act, cosponsored by Weinberg and Senate President Stephen Sweeney (D., Camden), is also being unveiled Thursday.

Under that bill, if local governing bodies set up subcommittees — for example, to discuss the purchase of playground equipment — meeting dates would have to be announced in advance and minutes would have to be kept.

The bill also would restrict elected officials from sending electronic communications to each other during meetings.

Weinberg said she has been getting pushback on both of the bills, particularly from governing bodies. Some towns have already passed resolutions opposing earlier incarnations of her proposals.

One concern, according to the League of Municipalities, is cost. For example, one proposed provision would require the release of recordings of meetings within a certain period of time. But what if the town needed to buy new recording equipment to abide by the law?

Additional costs are also associated with the staff paid to write the minutes at subcommittee meetings, and the cost of publishing notices of the dates of those meetings.

Lori Buckelew, a legislative analyst with the League of Municipalities, also said proposed requirements on posting agendas for meetings might slow down the functions of government. A town "might have to delay to take action on filling a pothole," she said, if it's not posted on a meeting agenda in advance.

Weinberg said that she was working with interested parties to fix any outstanding issues, but that she was more sympathetic to citizens than to government officials.

"Everything we do as elected officials is by the grace of the public," Weinberg said. "And they wonder what we do and they want the right to look at it, disagree with it, holler at us, encourage us. … It goes with the territory."

Neither of these bills, though, would affect members of the Legislature.

That prompted Christie's spokesman to accuse the legislators of hypocrisy.

"Transparency is a necessary and important part of good government," said Michael Drewniak. "But it's always amusing that the Legislature preaches transparency while it exempts itself from things like financial and conflicts of interest disclosure. And even OPRA. That's a double standard they perpetuate for self-interested reasons."