Transparency watchdog fights new rule that keeps disputes over public records a secret

The government agency tasked with deciding whether public agencies have illegally withheld records keeps much of its own records secret under a new rule it adopted last year.

Now, one of New Jersey’s leading transparency watchdogs is challenging the Government Records Council in court. Libertarians for Transparent Government wants a judge to strike down the “arbitrary, capricious and unreasonable” regulation that allows the council to conceal the complaints people file when state or local public officials deny their requests for information under the state’s Open Public Records Act.

These complaints have been public record since the council formed in 2002, but the regulation change, which took effect in November, now keeps them secret until the council fully resolves a challenge.

That process can take years, a notorious, long-time failure that has prompted public criticism and even a state comptroller investigation.

Attorney CJ Griffin, who represents the Libertarians in this fight and has represented the New Jersey Monitor in legal matters, suspects the change is the council’s effort to fend off further scrutiny.

“Now this new secrecy regulation will make it harder to track complaints as they move through the GRC and thus it will insulate the GRC from future criticism,” she wrote in a May appeal.

The council even was secretive about its new secrecy, failing to mention it in a November announcement about its new rule changes, Griffin added.

New Jersey’s public records law is a ‘sword and shield’ against corruption, citizens say

In a brief responding to the Libertarians’ appeal, the council argued that the regulation provides “temporary confidentiality” to protect those involved from “unwanted scrutiny during adjudication, especially where complaints involve sensitive matters or information.”

But people challenging record denials already can proceed anonymously using pseudonyms under another regulation already in place, Griffin said.

State law allows records to be exempted from public access only “for the protection of the public interest,” and the council hasn’t shown how its new regulation protects the public interest, she added. Instead, she said, it prevents people from seeing how their public officials are being accused of violating the public records law.

“OPRA was designed to increase public participation in government, but the GRC’s regulation keeps the public in the dark about what public records disputes their governments are fighting,” Griffin said. “It is unconscionable that the very agency tasked with ensuring that public agencies across the state are transparent has chosen secrecy for itself.”

A hearing has not yet been scheduled.

The council has fielded, on average, 322 complaints and 1,895 inquiries annually over much of the past decade, according to the comptroller’s July report.

Eroding transparency

The battle comes as transparency in New Jersey has come increasingly under attack. Several bills now in the legislative pipeline in Trenton would weaken the Open Public Records Act, watchdogs warn.

One bill would require anyone challenging a record denial to do so through the council.

People now can challenge record denials in Superior Court too, and that path is far easier and faster than the council, the comptroller found. The council typically takes 21 months to adjudicate a complaint, with some cases languishing unresolved for up to six years, while Superior Court judges usually resolve complaints within seven months, the comptroller found. Challenges in Superior Court are public record.

If that bill passes, then there would be “no transparency” about pending public records cases, Griffin said.

Other legislative proposals critics say would weaken public access to government records would add restrictions for frequent requestors, create new fees, and expand which government employees’ home addresses would be exempt from public record.