Open Government Advocates Blast ACLU-NJ and Senator Weinberg for Recent Amendment Regarding Legal Fees
The New Jersey Senate is slated to vote on changes to the State’s Open Public Records Act today that are supposed to provide citizens with more access to public records. But many open government advocates no longer support the bill because of a key change regarding legal fees that was made in a revised bill right before it was voted on for a first reading in December.
The New Jersey Press Association also opposes the legal fee change. The vote is a second reading, and the Senate would take another vote before the bill goes to the Assembly.
At a forum at Rutgers University last night, journalists and open public records advocates questioned why the wording in the legislation was changed to make the awarding of legal fees optional and not mandatory when a citizen challenges a public records denial by a public agency and is victorious in court.
“The bill that was supposed to be voted on was substituted at the last minute with a bill that contained changes that no one had access to,” said Bob Grant, who serves on the board of the New Jersey Foundation for Open Government. “The change regarding the awarding of legal fees is the most troubling change. The awarding of legal fees is at the core of a citizen’s ability to get his or her government to respond in a meaningful fashion. That is based on the ability of an attorney to take the case, go to court, prevail and get legal fees reimbursed. The change in the bill guts the intention of the whole thing.”
Asked why the wording was changed at the last minute, panelist Scott Devlin, legislative director for state Assemblyman Gordon M. Johnson, revealed that a deal was brokered behind closed doors between the ACLU-NJ and the League of Municipalities. The deal included changing the wording on the awarding of legal fees in order to placate the League. The Citizen’s Campaign also apparently backed the amendment. The wording was changed, yet the League still does not support the legislation.
“The ACLU and the League got together and suggested compromise language. The ACLU backed the language change,” Devlin said. “The change is wording regarding legal fees gives judges more discretion in deciding to award attorney fees or not. Sometimes there may be a technical violation but someone sues. The ACLU approached the senator, and with the senator’s permission the bill was weakened before it came to the Senate, and the substitution was made.”
The ACLU-NJ never bothered to discuss the possible changes with key stakeholders like the New Jersey Foundation for Open Government, which has been pushing for a better law since 2008. The bill is named after Martin O’Shea, a member of the group who was a vocal advocate for the public’s right to know. He died in 2009.
ACLU representative Thomas MacLeod, who was sitting in the audience, defended the deal and brushed off citizens’ concerns.
“We were willing to live with the change to gain some other aspects in the bill regarding notice requirements and subcommittee meetings,” he said. “We still stand behind the changes.”
Audience members asked what the ACLU really gained when the League still opposes the bill.
Some audience members pointed out that other gains are meaningless when the mechanism to enforce them had been weakened, and said the ACLU has essentially helped to water down the law.
Open government advocate John Paff said he was shocked that the ACLU didn’t bother to talk to other stakeholders.
“It’s striking how little transparency there has been in the legislative process when dealing with a bill that is intended to promote transparency,” Paff said. “Some judges are hostile regarding awarding attorney fees. This will mean fewer citizens will have fees paid. Show me a case where people have won on a technicality and received outrageous attorney fees. I haven’t heard of one instance of someone bleeding the system.
“Citizens are not going to sink $5,000 into a lawsuit to get records from a big city with unlimited legal resources,” Paff said. “There will be a marked decline in the number of people able to fight against the government for withholding information. I’m now opposed to Senator Weinberg’s bill. The ACLU knuckled under to League and has done a great disservice to us all.”
Walter Luers, a lawyer and the president of the Foundation for Open Government, said one of the reasons there have not been many cases brought to court regarding the Open Public Meetings Act is because legal fees are not awarded to citizens who prevail, and therefore many residents decide not to go to court if a government agency violates the Sunshine Law. But because fees have been awarded under the Open Public Records Act, which was passed in 2001, there is a lot more case law in that area.
“The law that has developed regarding public records is much more sophisticated than the law regarding public meetings because there is money behind it,” Luers said.