The Other Side of Transparency
By Albert B. Kelly
Like many people these days, I am believer in greater transparency and access when it comes to government, its meetings and its records. I imagine that this became the resting position for most people in the season after Watergate and the Nixon presidency and that belief has only grown in the years since. It was in the shadow of Watergate in 1975 that New Jersey passed its “Sunshine Law” known as “OPRA” which stands for “Open Public Records Act”.
Over the years, the Open Public Records Act has evolved as the breadth and width of the records government produces has grown. In addition to paper, an increasing amount of what comes out of the bowels of government is digital in nature whether emails, recordings, video or some other combination of ones and zeros.
This is as it should be. Confidentiality notwithstanding, people should have easy unfettered access to the vast majority of the records that are the byproduct of the governing that impacts our lives whether it involves the governing that gets done on the municipal level, county and state levels, or at the federal level- though the feds are world unto themselves.
Access and transparency are what keep officials accountable as well as keeping citizens informed. There is corruption in government, just as there is bad policy, but I have to think that there is far less of it than might otherwise be if we did not have these laws in place. On balance, the old saying that sunshine is the best disinfectant still holds true. But even as the rules evolve to account for the role of digital technology, the statutes need to acknowledge the increasing amount of time and work involved with meeting the spirit and intent of the law.
What I mean to say is that compliance with the law and fulfilling requests has become far more involved over the years than many realize. When the law was first envisioned, the extent of the records government generated and stored was far less than what we see today. Paper has its limits and prior to desktop computers, software, programs, tablets, apps, body-worn-cameras, and iPhones the departments and agencies of government could only crank out so much.
With limits to the amount and type of records produced back in the day, there was a limit to what was involved with gathering and transmitting those records and therefore a limit to the amount of time involved with fulfilling a given request. Today things are different and the reality is that for municipalities beyond the smallest communities, many could have one person dedicated exclusively to OPRA.
This is so because we live in an era when requests can easily overwhelm. Sometimes a request is straightforward whether it’s a resident desiring a simple record, a company completing due diligence, or someone doing research, but just as often it’s more involved and it requires a great deal of attention and while we need to give each request the attention it deserves, that is not always easy.
A missed deadline, a misunderstanding or some misstep in a response and the whole thing can feel adversarial and that’s not in keeping with the spirit and intent of the statute. At its worst, the whole thing can feel weaponized but at that point it’s about “prevailing parties” and “catalyst theory”.
The reality is that OPRA is an evolving specialty governed by detailed rules that dictate everything from the way requests are to be submitted and the medium used in response, to the amount of time available to the custodian to satisfy a request and what inputs can be used in calculating costs.
The real issue these days is about time and how much of the working day a Municipal Clerk’s Office must spend on OPRA whether checking and rechecking its provisions to ensure compliance, gathering records from storage, making copies, scanning copies, redacting that which cannot be released, following up with departments on various odds and ends associated with a given request, or doing whatever else is needed in order to fulfill a request within the prescribed deadline without violating anyone’s confidentiality.
The answer is not to be found in placing limits in OPRA beyond what already exists, but it is to suggest that there needs to be a way to support increased capacity in these offices that goes beyond the hard costs for paper and CDs.