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
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.
New Jersey Taxpayers' Association
We urge you to call or email Senator Weinberg at 201-928-0100 or firstname.lastname@example.org and ask her to keep the mandatory payment of fees in the law.