Area Lawyer Schools Citizens on Government and 'Your Right to Know'

Do We the People have a right to know how our tax dollars are spent or about the matters discussed by public servants in meetings?

In many cases, the answer is yes.

Area residents learned about "Your Right to Know" during a lecture held Tuesday night at the and sponsored by the New Jersey Foundation for Open Government.

The event featured attorney Walter Luers, who sits on the NJFOG Board of Directors. Over the course of two hours, Luers addressed how citizens can find out about the workings of local government using two tools: New Jersey's Open Records Act (OPRA) and Open Public Meetings Act.

OPRA was signed into law in 2002. Luers explained that the Act requires that government records must be made available to the public for inspection, examination and copying. Exceptions to the law are made to protect individual citizens' privacy. Tax records, documents involving ongoing investigations (unless requested information would not endanger the investigation), and confidential medical files, for example, are not subject to OPRA.

He said most public records—examples include meeting minutes, police reports, official communications, budgets, politicians' financial disclosures and public agency lawsuit settlement agreements—are fair game.

Luers, who spends most of his professional time representing citizens in OPRA-related cases, shared tips for making public records requests. 

"All requests must be made in writing, and you have to mention that you are making an Open Public Records Act request," he advised. "It is important that you be specific about the information you are seeking."

As an example, he posed a scenario in which a citizen asks a town clerk for the number of people who live in Parsippany-Troy Hills. That request, Leurs said, would be denied because it does not ask for a specific document.

However, a citizen request for the most recent census report, which would contain information on the number of people residing within the town, would be approved.

A good rule of thumb, he said, is to make sure the request at least identifies a category of document, the specific subject matter and a range of dates. 

"Remember that clerks do not do research for you. That's your responsibility. The clerk is not your librarian," Leurs noted.

In addition, requests by law must be verifiable. If one delivers a written request by hand, Leurs recommends obtaining a written receipt. If the request is mailed, it should be in the form of a certified letter, which will require a signature from the recipient.

Emailed requests are not recommended, as they are difficult to verify. If the request happens to go to the wrong government employee, that person has a legal obligation to refer the request to the proper employee within seven business days.

"Several things can happen once a request is made," Leurs said. "A records custodian may approve it, deny it, ask for clarification, or ask for a reasonable time extension, which can run from one to four weeks."

The attorney recommended that citizens grant an extension in advance as part of the the initial request.

If approved, an OPRA request must be fulfilled within seven business days, beginning on the first business day after the request is made. Citizens may ask that requested documents be emailed, faxed or scanned—Leurs noted that there is no cost if the documents exist digitally, and he said that most documents from the past 23 years are available electronically. If you request paper documents, there is a cost of roughly 5 cents per page for each page sent.

"But be reasonable in your requests," he cautioned."Don't ask for a 50-page fax. There will be a special service charge if you ask for too may documents or if an extraordinary time of effort is required." This can come into play if requested documents are in an archive or are kept off-site. 

"To avoid a special service charge, narrow your request," he said. "Start small and use separate requests to get all the information you need."

If a request is denied, citizens can appeal the decision to either the Government Records Council or the the Superior Court. There is no statute of limitations with cases referred to the GRC, Leurs said, but a decision likely won't be handed down for a year or more.

In contrast, a court decision can come in as little as three months or even sooner, but the case must be filed no later than 45 days after the denial. Another difference: There is no fee to have a case considered by the GRC, but a court case costs $230. If the citizen wins his or her appeal, though, the loser must pay the legal fees.

Leurs said that if a request is denied because a particular civic agency claims a need for secrecy, a citizen can get around this by making a Common Law Right of Access request. 

"This means that the citizen's need for information is greater than the need for secrecy," the attorney said. "When you make the request, a good idea is to ask under OPRA and the Common Law Right of Access."

If the Right of Access is denied, the matter must be appealed to Superior Court.

Leurs' lecture also addressed the Open Public Meetings Act, which is also known as the Sunshine Law. This law maintains that all meetings of public bodies in New Jersey must be open to the public and must be advertised. If a meeting is closed, it can only be for a reason authorized by law—and all votes must be made publicly.

Parsippany Town Council candidate and NJFOG board member Tom Wyka asked Leurs about the Par-Troy Board of Education's controversial decision to sue the state of New Jersey over its refusal to approve Superintendent LeRoy Seitz's new contract.

At a Board of Education candidates' forum held April 14, board member Michael Strumolo accused President Anthony Mancuso of conducting a vote on whether to file the lawsuit via phone, which he called a violation of the OPMA. 

Leurs replied that he could not speak about that particular case, but said, "If that happened, it's called sequencing, and you can't do that. Whether it's by email or over the phone, you can't call everyone one at a time and say, 'Do you want to do this?'

"Under the Open Public Meetings Act, votes must be taken publicly. There has to be prior notice—unfortunately, only 48 hours notice is required—and minutes have to be kept."

Leurs also cleared up a largely held misconception. 

"The OPMA does not guarantee the public's right to speak at any government-related meeting. People have the right to speak at municipal meetings and Board of Education meetings only," he said.

The New Jersey Foundation for Open Government is a non-profit statewide coalition of organizations and individuals. The group's stated mission is to increase governmental transparency, accountability, honesty, and democracy by defending and expanding citizens' access to public records and meetings.