Under Murphy, no disclosure champ, a fight for government records drags out 2 years | Editorial

Published: Aug. 01, 2022

When you want an answer that you can use to hold today’s elected officials accountable – what your mayor is doing, how much it’s costing taxpayers or whether laws are being broken – you might ask for a government contract or county payroll; something that shouldn’t be kept secret.

They may still refuse to turn it over, arguing this is exempt from our disclosure law. Your only recourse then, aside from suing, is to appeal to a state office that’s been dragging out these cases for two years, on average, a government watchdog just found – often rendering the answer useless.

The Government Records Council (GRC), which was created to give people a quick, free alternative to suing for records, has a running backlog of between 300 and 500 complaints, says acting state Comptroller Kevin Walsh, whose agency released this report.

“It’s supposed to be good customer service. They’re supposed to make this easy for people, is what the law says,” he told us. But that is a broken promise, his agency found: The GRC has not been doing its job.

The backdrop here is that Gov. Murphy’s been bad at disclosure, generally. He rarely does sit-down interviews, and when he does, they’re superficial; his departments tend to make it difficult to get the most basic information, and his allies have set up a secret fund that’s not revealing its donors.

You can have a good disclosure law, but it’s meaningless if it’s implemented in this spirit, by not filling jobs at the GRC and not answering public records requests in a timely manner.

Currently, the GRC has only one attorney and three staff members, the lowest staffing total it’s ever had. The Murphy administration hasn’t filled additional staff positions even though the funding is there, and he hasn’t nominated a member of the public to serve in the council’s empty fifth seat.

“It’s hard for me to take the Government Records Council very seriously because they do take so tremendously long,” said CJ Griffin, a lawyer and prominent open records advocate.

This also signals to state agencies that they don’t have to respond promptly to requests under our disclosure law, known as the Open Public Records Act, she said. “If the GRC is taking so long to adjudicate a complaint,” Griffin said, “how can state agencies really feel like they have to take their timeline seriously under OPRA?”

By comparison, those who sued for government records in court got a decision in an average of seven months, the state comptroller found. It sometimes takes as little as two or three months, said Griffin, who represents clients for free. And you often have a better chance of winning, she says, because while some records like police dashcams are exempt under the disclosure law, a court can still release them to you based on previous judicial decisions.

The GRC can be an ok place to go if you’re seeking to litigate a “hyper-technical” violation of the Open Public Records Act, like if a state agency charged you $5 for a CD-ROM when they’re really only allowed to charge you 50 cents, she said; or if you can’t find a lawyer to take your case. But the odds are stacked against you as a regular citizen without expertise arguing case law, because you’re up against the lawyer for a state agency – an outcome that’s designed to be less favorable to transparency, as is the precedent set by previous mismatched fights like this at the GRC.

So, time to go back to the drawing board: The Legislature should hold hearings on how we can re-imagine the GRC. Should it act as a mediator, lightening the load on the courts but not rendering a final decision that leaves you unable to sue? On this much, we should all agree: It’s not working now. The point of our disclosure law was to create incentives for elected officials to act transparently, by punishing them promptly for violations. And clearly, that’s not what happens at the GRC.

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published this page in News and Politics 2022-08-02 03:36:38 -0700