This week, Assembly Bill A4532 passed out of the State and Local Government Committee and will likely be voted on by the Assembly at some point in the near future. This bill will severely hinder transparency in this State in two ways.
First, A4532 creates a new exemption for “personal government records,” which are defined as records “that consists of or pertains solely to a pet or home alarm system permit, license, or registration.” While I understand that the sponsor of the bill is concerned that businesses utilize these lists as marketing tools, these lists can be very valuable resources to members of the public. For example, animal rights advocates routinely use lists of pet license holders to notify pet owners that the local animal shelter has health code violations or inhumane conditions. As a result of such activism, shelters have been placed into new management or shut down altogether. Other animal rights advocates have used the list to expose backyard breeders who do not have their pets licensed. If these records are exempted from public access, it will be much harder for these advocates to advance their cause.
Second, as it is currently written, A4532 changes OPRA’s mandatory fee-shifting provision so that an agency that acts in “good faith” and is “reasonable” will not have to pay fees even if the court rules in the requestor’s favor. Such a change will gut OPRA. The mandatory fee-shifting provision is what gives OPRA “teeth” because it permits requestors to sue to gain access to records and be assured that their attorney fees will be covered. If fees are only provided where the agency was unreasonable or acted in bad faith, then cases of first impression will not be litigated because it will be too easy for the agency to say they were “reasonable” in denying a request since they had no guidance. Additionally, in any case where there is a conflict in legal authority (such as a GRC decision that conflicts with a court decision), the agency will try to escape fees by saying they were “reasonable” in following one instead of the other.
Simply put, without the assurance of a mandatory fee, requestors will be unable to find attorneys who will represent them on a contingency basis. This means that cases will not be litigated and the State will be less transparent as a result.
According to John Paff, the sponsors of the bill insist that they did not intend for the fee-shifting provision to be altered as to all types of OPRA cases and only intend to change it as to “personal government records.” The bill as written, however, simply does not say that. Moreover, if there is a blanket exemption for “personal government records,” there is no need to change the fee-shifting provision because a requestor will never “prevail” anyway.
For more information about this blog post or any other OPRA question, please contact firstname.lastname@example.org.