State council can’t shield records from disclosure during disputes, court rules

A Government Records Council rule that kept records dispute submissions confidential has no basis in law and no public purpose, judges rule. (Getty Images)

A New Jersey appellate panel struck down a regulation Monday that shields from disclosure documents submitted to the state body that oversees public record disputes, finding the rule has no basis in law and runs counter to the transparency legislation the Government Records Council is tasked with enforcing.

The disputed 2022 rule requires all documents submitted to it as part of a dispute under the Open Public Records Act to be kept confidential until the council reaches a decision in a given case. The council takes nearly two years to resolve the average records dispute.

“The regulation violates OPRA’s plainly stated requirements, finds no basis in OPRA, and is inconsistent with the well-established legislative mandate that the citizens of this state are entitled to prompt and full public access to government records under OPRA,” Judge Francis Vernoia wrote for the court .

The regulation, the judges added, essentially allows the Government Records Council to substitute its own timeline for the mandatory seven-day response period provided by the public records law. The regulation represents an effective exemption in the Open Public Records Act that does not exist in the law, they added.

“In its ruling today, the Appellate Division has shown us that the judicial branch continues to uphold government transparency, even if the legislative and executive branches do not,” plaintiff John Paff, executive director of Libertarian for Transparent Government, said in a statement.

The Government Records Council argued that the rule is needed to shield their languorous proceedings from undue influence and to prevent personal information from being disclosed.

But the judges noted the Open Public Records Act already has provisions to protect requestors’ privacy. There is no reasonable expectation that records requests would remain private, they added. Requests made under the law are also considered public records.

Other GRC regulations allow requestors to file records disputes anonymously, the judges said, and those regulations require the challenger to show that unmasking them would create a threat of physical harm or reveal private information, among other things.

Shielding public records disputes would also harm the rights of any person or group that would intervene in a public records dispute, the judges ruled. Because the regulation “drapes all pending denial-of-access cases in a cloak of secrecy until final disposition,” potential intervenors would be unaware of pending cases until they are no longer pending, the court found.

They said the regulation “does nothing more than hide from public view the performance of the GRC’s essential function of adjudicating denial-of-access complaints.”

“Today’s decision ensures that these cases are not litigated in complete secrecy as the GRC desired, without reporters being able to track their progress and report about the types of violations agencies are committing,” said CJ Griffin, who represented Libertarians for Transparent Government.

Griffin has represented the New Jersey Monitor in numerous legal matters. The Government Records Council did not immediately return a request for comment.

The court’s Monday decision comes months after the Legislature passed and Gov. Phil Murphy signed a bill weakening public records disclosure in New Jersey .

That law, due to take effect in early September, exempts numerous new documents from disclosure, ends mandatory fee-shifting that has formed the basis of enforcement of the law in the courts, and allows commercial requestors to pay to have their requests filled before others, among numerous other things.

“With the Legislature’s decision to gut OPRA over the will of the people, we know for certain that agencies will deny more requests or impose insane service charges to keep records from people. We’re already seeing it happen,” Griffin said.