N.J.’s lag in public record disputes ‘undermines transparency,’ watchdog says

People fighting to get government records typically have to wait nearly two years for answers when they seek help from a state office created to give folks a fast, free alternative to suing for access, the Office of the State Comptroller found in a new report released Tuesday.

The Government Records Council — which lawmakers created in 2002 to consider complaints from people denied information requested under the state’s Open Public Records Act — is understaffed and underfunded and hasn’t tweaked its “inefficient” processes since 2008, carrying an annual average backlog topping 400 cases, investigators found.

These problems have held up complaints the council received from 2012 through 2020 for 21 months, on average, while complaints involving complex issues can take more than six years to resolve, investigators found. In one case, it took the council 33 months after a complaint was filed to ask the agency in question why it withheld records, according to the report.

Such delays show the council fails in its mandated mission to decide disputes “expeditiously,” the report says.

“Transparency fuels democracy. Getting the documents that show what elected officials and public employees are doing is the first step in holding government accountable,” acting State Comptroller Kevin Walsh said in a statement. “The Open Public Records Act promised New Jerseyans quick access to public records. Taking almost two years to decide disputes over public records undermines our commitment to transparency.”

The Open Public Records Act requires public entities to respond to requests for documents within seven days.

The Government Records Council has fielded, on average, 322 complaints and 1,895 inquiries annually over much of the past decade, with complaints against municipalities comprising 41% of the caseload; state agencies, 24%; counties, 15%; schools, 10%; and police departments and universities and colleges, 5% each, the report found.

People who want to challenge record denials can also sue, and investigators found the state judiciary does a far better job resolving such cases. Superior Court judges closed OPRA-related complaints, on average, in seven months in recent years, two to three times faster than the council, according to the report.

The council’s sluggish pace, then, is an equity issue, because some people can’t afford an attorney and filing fees or might otherwise want to avoid litigation, the report says.

Walter M. Luers, an attorney who specializes in public records cases, said he now has two motions that have been pending before the council for 56 months.

“The GRC is failing,” Luers said.  “While the GRC’s current rules provide very short periods of time for participants to take certain actions — for example, a municipality only has five business days to respond to a denial of access complaint, although this time can be extended — the GRC routinely takes months and years to make decisions, as indicated by the OSC’s report. Practitioners have known about and been frustrated by these delays for years.”

The comptroller’s office discovered the council’s executive director had unsuccessfully asked the state Department of Community Affairs, which oversees the council, for more staff in weekly and annual reports since 2018.

The report recommends the council:

• Hire more attorneys — and alert legislators if their staffing needs exceed their budget allocation.
• Use staff attorneys as hearing officers.
• Inform the public how long it should take to resolve complaints and publish such data on its website.

A DCA spokeswoman said the council has started updating its regulations and recruiting more staff, in line with the report’s recommendations.

The comptroller’s office also suggested ways lawmakers could strengthen the Open Public Records Act to increase efficiency, like allowing the council’s staff attorneys to make final decisions regarding access to public records. (Now, the full council must make such final decisions at its monthly meetings.)

“The good news is that these are easily solvable problems,” Walsh said.

Luers agreed with the report’s recommendations that the council should streamline its processes. It also should use volunteer attorneys to act as mediators or assist in settlements, as the courts do, Luers added.