Longport acting Clerk Emilia Strawder splits her day into two shifts.
“The mornings are my clerk work and the afternoons I handle OPRAs,” she said. “Sometimes I have to give up my clerk duties for a few days just to do OPRAs. It’s one person being divided in half just to do it.”
With municipal staffs shrinking due to budget problems, a request made through the state’s Open Public Records Act can put a major strain on towns. It can take time for a municipal staff to prepare the requests, which they must do within a seven-day deadline.
Lawmakers agree that the Open Public Records Act remains an important tool that allows residents to obtain information on their towns and provide a watchdog role for how government operates. Some municipalities, however, are seeking help to deal with residents who abuse the system and monopolize staff time by filing hundreds of requests in a given year.
When an OPRA request for a document or information comes in, Strawder files it and sends it to the appropriate department. When she gets the requested documents back, she redacts anything covered by the 24 state exemptions — which include personal information such as Social Security numbers, financial statements, anything attorney-client related or police investigations.
Copies must then be made or, if an electronic copy was requested, all of the documents must be scanned. The work has grown so much that Longport has set aside a separate table and computer for OPRA requests.
Longport’s municipal staff has shown a lot of practice over the years.
The borough has fewer than 800 permanent residents, but last year the staff handled 399 requests. In 2010 the number was 283 and in 2009 there were 857 requests.
But 997 of those combined 1,539 requests (65 percent) filed in the past three years came from just a handful of people, causing local officials to seek reforms. Mayor Nick Russo said he believes in the law, but he also says it is necessary to protect residents’ privacy as well as the municipalities from costs due to lawsuits and staff hours. He says the law needs reform.
Protecting access
Longport is not alone. Multiple state agencies are discussing ways to alter the law so that the process can be easier for local towns.
Senate Majority Leader Loretta Weinberg, D-Bergen, has introduced two bills to reform OPRA laws, S-1451 and S-1452. The laws propose changes, such as requiring staff to explain why something in a document may be redacted, emailing records, posting meeting notices online and directing people to a Web site if a document is available there.
But Weinberg said finding a way to limit the number of requests is difficult. “I have not found a constitutional way to do that,” she said.
One suggestion is to give a municipality the ability to sue an applicant if it believes requests are frivolous; a court would determine if the request should be filled. Weinberg said she has not defined what would constitute a “frivolous” request.
State Sen. Jim Whelan, D-Atlantic, said his colleagues are sensitive to the idea of not restricting access.
“If we will err (in reforming the OPRA), it will be on the side of having more access, not less,” he said. “When I check with leadership, their feeling is we want to be open and accessible as possible.”
But some of the smaller towns — that may not even have a full-time clerk or solicitor — are less equipped to handle the issues that come up with access, Whelan admitted.
“What gets redacted, what does and doesn’t need a lawyer? If the lawyer is on vacation, what do you do?” he said. “The law says you have to do it in a tight timeframe. Those are issues you grapple with.”
Garfield Clerk Drew Pavlica, president of the Municipal Clerks Association of New Jersey, said everyone is in favor of openness and transparency, but OPRA should not be used as a tool to hurt government.
“Everyone must go forward with good effort. No one should have malicious intent,” he said. “It’s difficult. You are trying to protect public’s right for openness and transparency but also defend against abuse.”
Russo said the law is not just about access to government records, it involves residents’ lives as well. Russo said he stopped using the borough’s email system two years ago, because he wanted a resident to be able to speak to him about an issue without it being made public. Russo said that under OPRA, residents can access other personal information, such as the floor plans to a home.
“We shouldn’t call it government records,” he said. “It’s citizens’ records.”
Legal fees
Failure to meet all the criteria of OPRA can be costly.
In a June 21 ruling by Atlantic County Superior Court Judge Julio Mendez, Longport was ordered to pay $23,345 in attorney fees for unfulfilled OPRA requests from 2010. The applicant had asked for numerous emails, which the borough could not provide because it did not have a centralized email system. The borough instituted the new system four months after the lawsuit was filed and has worked to fill the request.
But because the request was not fulfilled on time, Longport must pay the requester’s attorney, Donald Doherty, his work of 66.7 hours at $350 an hour.
Russo said he wishes the state law would be amended so that municipalities would be required to pay only if a judge finds they did not make a good faith effort to supply the information.
“The judge had no choice,” Russo said. “He has no leeway.”
The mayor also said if there’s a problem between a municipality and the requestor there should be another step before having to file a lawsuit. Russo said the state Government Records Council should be used to mediate a resolution, and if it finds a town is purposely withholding records then legal action should be taken.
Woodbine resident Harry Scheeler filed a lawsuit against Galloway Township when he did not receive several OPRA requests on time; the township was having problems staffing the clerk position. He eventually settled the lawsuit with the township after current clerk TC Kaycq was appointed and the municipality agreed to pay his attorney, Doherty, $2,500 in attorney fees.
Mayor Don Purdy said some attorneys act “like ambulance chasers” hoping towns will not fulfill all of its OPRA requests so they can sue and collect attorney fees.
“Things can slip through the cracks,” he said.
Galloway Township has seen hundreds of OPRA requests in recent years; the process has taken a toll on the staff. Purdy said some employees have left because of excessive requests.
“The way OPRA is, is a very demanding process,” he said. “I don’t understand why there is such a tight deadline. In a lot of situations no one will die if it’s not filed in seven days.”
Scheeler has made about 200 OPRA requests from the township since November as he launched an Internet blog to chronicle the local government.
But Scheeler said he files his requests based on informed tips from employees and residents in the township and said he puts 90 percent of the documents he collects on the Web site.
Scheeler said he would be in favor of penalizing residents who file frivolous requests.
“If someone is filing an OPRA just to harass, they should not be allowed to do it,” he said.
But he also said it could be tricky and towns could be accused of filing a Strategic Litigation Against Public Participation — or SLAAP — lawsuit if they go after a request they feel is frivolous. The type of litigation is not allowed in the state and if a party is found to file a lawsuit with intent of shutting someone up they can be held liable for fees.
An Internet solution
One way to make providing documents easier could be to release the information in the first place.
Weinberg said she has found towns in her district with problems of numerous OPRA requests have found the process was easier once they started putting more documents online.
Whelan has proposed a bill that would require all government records to be posted online by the agency that holds the records. New records created after the bill’s effective date would have to be posted on their Web site within 30 days, while older records would be made available within six months.
Purdy said Galloway is exploring posting all documents online.
Scheeler also agrees more documents online would be beneficial.
“The solution to OPRA is to have documents available online. If someone OPRAs a bunch of documents and does not share with any other people they will have to OPRA it again,” he said. “OPRA is a very powerful tool for people. It’s the only way for residents to make sure what they’re doing is legal and responsible. I would hope any restraints put on the public is just.”
