On Fixing the Open Public Records Act

The following post by Marc Pfeiffer is being republished courtesy of The New Jersey State Policy Lab at Rutgers University.

OPRA, the state’s Open Public Records Act, is showing its age. Now 22 years old, this important public policy suffers, in part, from age, neglect, unintended consequences, and unexpected use cases. Over the years it has received insufficient legislative attention that left unaddressed, judicial decisions that modified and interpreted key elements.

Over the years, the law’s intent has been unexpectedly undermined by technological changes (e.g., email, text messaging, AI-generated content), abuse of the law by outliers seeking financial gain, and costly financial and administrative burdens placed on government agencies, which are then passed on to local taxpayers. There is also an
inadequate and inconsistent understanding of what constitutes the free flow of information in the public interest vs the privacy rights of the individual.

It has also seen an evolution of public expectations and suspicions of government, driven by technology/social media, local, state, and national politics, world events, and increased attention to and fascination with the accusations against unethical public officials. The result is an environment in which many people are increasingly distrustful and dubious of government processes. That leads them to demand more access to government records.

Efforts to repair OPRA must recognize that the law affects all levels of New Jersey government, not just municipal, though that seems to get the most public attention. It has become an indispensable element for:

1. the media and its essential role in holding government agencies accountable through records and data.
2. companies that use or repackage for sale government data which, which while possibly improving the economy, in some cases may violate privacy expectations.
3. non-profit advocacy groups that rely on public records for their work.
4. academicians who regularly work under strict confidentiality rules with sensitive data.
5. organizations that conduct business and negotiate contracts with government agencies.
6. members of the public with vested and public interests in government activities.

How can we solve the problems without a clear understanding of the issues and circumstances that need to be addressed? Using anecdotal reports based on problems that may or not be widespread or affect a single interest is not a sound approach. Policy problem-solving requires a process to identify the range of problems, understand their underlying causes, and assess their frequency and severity. At this link is my description of the questions surrounding OPRA and a process that may lead to potential solutions that address those critical challenges.

The Questions OPRA Faces

• With 22 years of experience and substantial evolutions in government operations and expectations, has the definition of a disclosable record evolved?
• What happens when records’ custodians exceed the seven-day waiting period to fulfill a request? Should they be penalized for continuously extending the deadline?
• Should commercial users or data brokers pay for data? If so, how and under what circumstances? And how are both those groups appropriately defined?
• How should agencies differentiate between a record subject to disclosure and a request for information?
• What does privacy mean in today’s environment? When should agencies require consent before an individual’s personal information is disclosed?
• How do officials handle the challenges faced by the Government Records Council to adjudicate complaints promptly?
• How do governments handle the financial burden of paying attorney fees when they lose a complaint or to review responses to ensure they do not disclose protected information?
• How do agencies mitigate the potential for abuse and harassment by a small number of litigious individuals?
• How can agencies of different sizes and capacities manage and fund technological solutions to meet public expectations in a world driven by digital data?

There are other issues that can be added to the list.

Democracy can be messy. Well-intended and passionate people and groups will disagree about policy choices. In some ways, fixing OPRA is an example of “where you stand depends on where you sit.” We must realize that neither individual privacy nor information access is absolute.

Our processes need to accommodate disagreement and still make decisions to reach societal goals. Solutions need to balance the public’s right to government information with productive government administration, meet societal priorities, and be flexible enough to adapt to a variety of use cases.

It must do that in a way that allows for effective government processes. It also needs to minimize the use of government practices for outlier cases of improper or illegal personal or private gain. Those cases taint all of government actions.

Lack of Trust Between Advocates

Unfortunately, public debate in today’s climate is polluted by accusations of unfair dealing, public mockery, and threats of recrimination. That all but renders impossible a productive discussion of the problems. This environment has led to private meetings and solutions developed by select parties with fixed viewpoints or limited research into potential solutions. Those not consulted respond negatively and vociferously. That amplifies a lack of trust and public confusion. Resentment builds with each failed “reform” effort and an opportunity for improvement is lost. Again and again.

This does little to develop public confidence in how we can fix the problems. History shows that poorly informed and piecemeal solutions to complicated public policy issues rarely work. Limited approaches lead to limited solutions that invariably result in cascading and unintended consequences, often leaving the core problem unresolved.

Solving complex public policy problems requires an understanding of the issues from multiple perspectives along with having reliable and informative data. Participants need insight into balancing access vs privacy, the interconnectedness of issues, and a sense of real-world situations. This includes examining how other states address similar issues. When it comes to accessing public records, the overarching public interest warrants balancing the needs of individual, institutional, economic, political, and private stakeholders. Therefore, stakeholder representatives should be involved from the start. They should participate in finding workable solutions. Unfortunately, efforts to date have not succeeded.

A Modest Proposal to Resolve the Dilemma

There is a valuable precedent for breaking the logjam. A decade ago, there was great national interest in encouraging government agencies to open data sets to the public, aka, open government data. The movement was driven by new online database technologies that made data available using standardized machine-readable formats.

To address the issue in New Jersey, the Bloustein Local Government Research Center (the Rutgers research unit with which the author is affiliated), the Public Technology Institute, and the Geraldine W. Dodge Foundation (under its then president, Chris Daggett) worked together to develop a “thought forum” of experts to study the
concept.

We employed a carefully developed process that included representatives from stakeholders interested in the issue. Those included members of the business community, government agencies at every level, press representatives, non profit researchers, academics, civil rights organizations, and more.

The parties came together for a one-day meeting that included subject matter experts, training, and off-the-record, candid, and robust discussions of how New Jersey could address access and availability of electronically stored, database records.

The outcome was a public report that documented the process and findings. It was distributed to all the participants, each state legislator, and the government leaders at the time. Two years later, it resulted in legislation that created the New Jersey Open Data Initiative Law (P.L. 2017, c.2.), an innovative measure for its time.

The concept of a thought forum could be applied to updating and refreshing the now 22-year-old OPRA. It would be more involved because the challenges of refreshing OPRA are more complex. For example:

• It must provide for the engagement of government agencies at all levels and ensure adequate representation of concerned private, non-profit sectors, and other interested parties.
• It requires developing a clear understanding of each sector’s interests, issues, and concerns.
• It must deploy surveys and other tools to collect and analyze OPRA request data as well as agency OPRA management activities and experiences.
• It should also conduct a scan of similar challenges in other states and how they handled them.
• It should understand the impact of the judiciary and precedential cases on the process.
• Ideally, it would have the support of the state government administration along with non-state government organizations to encourage broad participation in data and information gathering.

Without data and a thorough understanding of the challenges, the development of well- considered solutions cannot happen. Ideally, it would be conducted using academic study and confidentiality rules to reduce or remove contention and debate during the research process. The goal is to examine the issues with patience and thoroughness and
avoid political opportunism.

The effort would likely take 12-18 months to complete. It would need a small, capable team and access to subject matter experts, participation of government agencies and interested parties, and the time to gather and analyze relevant data. At that point, a panel would be convened to review findings, offer input and evaluation, and result in conclusions and recommendations.

The result would be the preparation of a final report documenting the process and highlighting the recommendations along with participants’ comments. It would need funding to accomplish and, hopefully, a quiet period in which to work without political “noise.”

Public records and data are important elements of today’s life. Many well-meaning people have ideas on the best way to address their dissemination and use, but often with conflicting viewpoints and interests. Political leaders have spent years and lots of political capital developing reforms that have resulted in parties talking at each other without coming to a politically viable consensus.

It’s time to do something different. Understanding, reconciling, and balancing competing interests is hard. It requires an informed and measured process to get there.

Let’s try to get it right – it’s too important not to make the effort.