Earlier this week, the NJTA sent a letter to State Senator Loretta Weinberg, regarding a proposed change to senate bill S-2512. We believe the bill's main intent is to strengthen the Open Public Records Act (OPRA) and reduce the cost of unnessary legal fees passed on to taxpayer.
However, one small proposed wording change may actually encourage government entities to "run up" the
legal bills (paid for by taxpayers) in an effort to strategically reduce
transparency in government. Please read our letter to State Senator
Loretta Weinberg below:
Honorable Loretta Weinberg
545 Cedar Lane
Teaneck, NJ 07666
Re: S2512
Dear Senator Weinberg:
I am writing to oppose any
amendment of the Open Public Records Act ("OPRA') that that changes the
requestor's entitlement to an award of reasonable attorneys' fees from
"shall" to "may." In particular, I am writing with respect
to S2512.
As you know, mandatory awards
of reasonable attorneys' fees to prevailing members of the public have been in
OPRA since it was first passed. Mandatory fee-shifting guarantees that
there will be at least some lawyers who are willing to handle OPRA cases for
members of the public and non-profit groups who do not have the resources to
pay lawyers the several thousand dollars it costs to bring an OPRA case in
Superior Court.
If citizens and non-profits who
are denied access to public records are also denied access to lawyers, they
will be effectively disenfranchised and will not be able to participate
meaningfully in government.
Unfortunately,
government agencies routinely deny access to public records.
Municipalities deny access to settlement agreements. County prosecutors
deny access to criminal files, even for closed cases. Police departments
deny access to routine arrest records. State agencies deny access to
records on the basis that the records requests are "overbroad," even
in cases when the records are easily identifiable. While there are always
exceptions, there continues to be a strong culture against disclosure.
That can only be countered with strong activism through many means, including
the Court system, with the assistance of competent, diligent and experienced
legal counsel.
Relative to the resources of
citizens, public agencies are immensely powerful. The State of New Jersey
has its own law firm - the Office of the Attorney General - to defend it in
OPRA cases. All counties have in-house counsel or powerful law firms that
routinely represent them. The larger cities and municipalities have
lawyers who work in-house or have lawyers on retainer. Every municipality
has access to lawyers who regularly advise them on legal matters, including
OPRA. As you know, taxpayers pay for all of these lawyers.
Mandatory fee-shifting in OPRA
is not an advantage; rather, it was intended to level the playing field.
The attorneys who work for public agencies and who handle OPRA cases are guaranteed
payment, regardless of outcome. If the attorneys who work for public
entities are guaranteed to be paid no matter what happens in a case, then it is
only fair that lawyers who handle OPRA cases against public entities should be
paid a reasonable fee in every case in which they prevail.
I emphasize that attorneys'
fees must be reasonable. While fee-shifting itself is mandatory, Courts
and judges already have broad discretion to determine the amount of those fees,
relative to the success achieved (among other factors).
If the fee-shifting provision
in the law is changed to "may," it will create, at best, a tremendous
amount of uncertainty regarding the circumstances under which attorneys would
be entitled to fees. This uncertainty will reduce the public's access to
competent lawyers.
For these reasons, I urge you
to retain mandatory fee-shifting in OPRA.
Sincerely,
Chris Rogers
President
New Jersey Taxpayers'
Association
We urge you to call or email Senator Weinberg at 201-928-0100 or senweinberg@njleg.org and ask
her to keep the mandatory payment of fees in the law.