Tag Archives: Open Public Meetings Act

Sunshine Week: Jennifer A. Borg, Esq.

We close Sunshine Week by featuring Jennifer A. Borg, Esq.

Ms. Borg is General Counsel and Vice President of North Jersey Media Group, publisher of The Record.  She is a recognized authority in First Amendment and open governance matters, particularly as they affect newspapers, and has recently served as Chair of the New Jersey Press Association.  She also has litigated numerous OPRA lawsuits with successful results.  Ms. Borg was featured in the ABA Journal (July 2014) for her expertise in OPRA and public records access issues.  Pashman Stein regularly serves as co-counsel with North Jersey Media Group on complex OPRA cases, several of which are presently on appeal before the Appellate Division.

Interview with Jennifer A. Borg, Esq:

  1. How many OPRA requests do North Jersey Media Group’s reporters submit each month? How many result in violations and/or litigation?

I have no way of knowing exactly how many requests are filed for any given time-period.  North Jersey Media Group has over 100 reporters and very few requests actually make it to my desk.  Usually, I am only contacted when a request is denied, although I do encourage reporters to allow me to help them draft the request.  Requests that are too broad or unclear are often denied so I like to work with reporters to make sure the  request is valid and specific.

I would estimate that we file 6-12 OPRA lawsuits a year.

  1. What are the most common OPRA violations that you see?

The most common violations are not providing a privilege log or Vaughn index with the denial.  Too often, an agency will just deny a request outright without listing the specific documents being withheld or explaining the reasons why each document is being withheld.

  1. Do you think OPRA and OPMA are working well?

I think OPRA is an improvement over the former Right to Know Law.  But, I agree with Senator Weinberg that amendments are greatly needed.  OPRA has been in effect for over a dozen years so we have had time to evaluate where it can be strengthened.  I have less experience with the Open Public Meetings Act (“OPMA”), but I find that it too is missing important language clarifying its terms.  For instance, agencies need to be more specific when giving reasons for going into closed session. “Personnel” and “litigation” do not suffice.    Because OPMA does not provide for attorneys’ fees to the prevailing party, many people don’t take significant violations to court. It’s simply too expensive for most people to pay a lawyer to litigate these claims.

  1. If you could persuade the Legislature to take steps to improve government transparency, what would be your top suggestions?

OPMA needs to provide for attorneys’ fees so that members of the public have lawyers willing to take their cases to court.  Without attorneys’ fees, the practical effect is that agencies can violate the statute without consequence.  There are many changes I would like to see made to OPRA.  For starters, I think the statute should make it clear that courts, and not just the GRC, can impose penalties against those who knowingly and willfully violate the statute and that requestors be allowed limited discovery to prove that an official engaged in such conduct.   It makes no sense that a public official can flagrantly violate the law and not be held accountable for his or her misconduct.  Custodians are required to perform an adequate search for records but too often judges do not allow a requestor limited discovery into whether the custodian’s search was proper and adequate.     Without looking under the hood, how can we hold officials accountable when they knowingly violate the law?   It is crucial for the public to be able to verify that a custodian or other official properly performed his or her job duties when responding to an OPRA request.

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.

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Sunshine Week: Rich Rivera

Today’s Sunshine Week profile features Rich Rivera, a police practices expert who uses OPRA to monitor police misconduct and the use of force by police officers on citizens.  Mr. Rivera is the Chairman of the Latino Leadership Alliance of New Jersey’s Civil Rights Protection Project, which addresses the community’s needs relating to police services and police interactions. He is a former Board Member of the ACLU of New Jersey, where he co-authored the report “The Crisis Inside Police Internal Affairs.”  Pashman Stein has litigated several cases on Mr. Rivera’s behalf.

Interview with Rich Rivera:

  1. When and how did you initially become interested in the open government movement?

In the late 1990s, when I began researching policing in New Jersey.

  1. What types of government records or open government issues interest you most?

Anything relating to policing, as well as government efficiency and draconian government policies.  All of my requests are made to work towards reform and government transparency.

  1. How many OPRA requests do you file a year? How many times would you estimate the public agency violates OPRA? Of those, how many do you actually litigate?

I file over 100 requests each year. Custodians violate OPRA in about half of my requests, but I litigate about five instances a year. So overwhelmingly, the violations go unchecked.  I gave up on GRC complaints more than 5 years ago and file exclusively in Superior Court now, where you get results faster.

  1. If you could persuade the Legislature to amend OPRA, what would be your top suggestions?

I would ask the legislature to give some teeth to upholding public records access and to develop penalties for the unlawful destruction of public records.  As it stands, there are some entities that purge records after public access requests and that’s simply a crime.  But, an OPRA requester has no real recourse when that occurs.

For more information about this blog post or any other OPRA question, please contact cgriffin@pashmanstein.com.

Can I Request Closed Session Meeting Minutes?

Pursuant to the Open Public Meetings Act (OPMA), meeting minutes must be “promptly available” to the public.  Our courts have held that “promptly available” means within two weeks after the public body’s last meeting or at least 48 hours prior to the next meeting. At any point after that, you are free to submit an OPRA request for the minutes and access must be granted within seven (7) business days.  But what about closed/executive session minutes?

OPMA allows a public body to meet in closed session to shield certain information from the public. Among other things, these matters include: (1) matter rendered confidential by other laws; (2) matters which would constitute an invasion of individual privacy; (3) proposed terms of a collective bargaining agreement; (4) litigation-related subjects; and (5) certain employment matters. N.J.S.A. 10:4-12.  The public body must keep minutes for these closed sessions. While it may redact the minutes when responding to your OPRA request, it must state the specific basis for each redaction within the minutes.  It is not enough that it issues a blanket claim of assertion for all redactions.  Finally, once the need to keep certain information ceases (such as once the litigation ends), then the public entity is to release the minutes in full, unredacted form.

For more information about this blog post, please contact cgriffin@pashmanstein.com.