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OPRA: Private Citizen vs. City Official. Why You Can

OPRA: Private Citizen vs. City Official. Why You Can

OPRA: Private Citizen vs. City Official.

Why You Can't Play on Both Sides of the Fence

04/02/2008  by Ed Mecka, emecka.com

For several years, Hoboken Community Activist Beth Mason has been in the forefront advocating "transparency" in government.  Mason and I, along with eleven Hoboken citizens, were founding members of People for Open Government, a Hoboken-based civic organization dedicated to campaign finance reform, ethics, OPRA, public access and other open government issues.

In addition, Mason serves as the president of the New Jersey Foundation for Open Government which seeks to increase transparency, accountability, honesty and democracy in government at all levels by defending and expanding public access to government records and meetings. Mason, as a private citizen, built a reputation across the State as a leader in government reform.

POLITICAL TRANSITION:

On July 1, 2008, Mason's political status changed from "private citizen" to "government official" when she was sworn into political office representing Hoboken's Second Ward as "Councilwoman Beth Mason." With several "private citizen" initated OPRA lawsuits against the City of Hoboken still pending in the Courts, Councilwoman Mason now finds herself in the political quagmire of suing herself as a Hoboken government Official.

Without getting into the merits of the lawsuits, Mason has been accused of costing the taxpayers extensive legal bills while at the same time having the responsibility of protecting taxpayer monies.  In his February 24, 2008 "letter to the editor" of a weekly local newspaper, Hoboken Corporation Counsel STEVE KLEINMAN voiced his opinon on Mason's OPRA lawsuits against the Hoboken.

At the March 5, 2008 Hoboken City Council meeting MASON made a public statement in response to KLEINMAN's letter.  After Mason's statement, City Officials and fellow City Council members chastised Mason for continuing the OPRA lawsuits against the City.  

VIDEO:  MASON'S PUBLIC STATEMENT AND COUNCIL DEBATE


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Despite recent press accolades, Mason's effectiveness as an elected city official is overshadowed by the constant public reminders of the cost of the lawsuits to the Hoboken taxpayer.

PRIVATE CITIZEN:

As a private citizen, Beth Mason was well within her rights to utilize OPRA (Open Public Records Act) in her quest for government records and seek redress in the Courts if the City failed to comply with her OPRA request.  The Court action is designed to allow a "detached" magistrate to review the government's reasons for withholding the information in accordance with New Jersey OPRA statutes, N.J.S.A. 47:1A-1 et seq.

GOVERNMENT OFFICIAL:

As a "government official" and a member of the Hoboken's City Government's Legislative Branch, there is no doubt that Mason is entitled access to Hoboken government records.  But Mason, or "any other public official," has to understand that with privileged government access comes accountable for compliance with OPRA dissemination statutes with respect to "legally protected" information. 

THE STANDOFF CONTINUES:

Although the Hoboken Administration offered to make all records, including "legally protected" information, available upon the request of a "majority" of the City Council, the Council took no action on Mason's behalf.  Until there is a consensus between Mason, the City Council, and the City Administration, expect nothing to change.

COMPETING INTERESTS:

If the City continues to refuse Mason access, expect protracted lawsuits and continued legal bills.  On the other hand, Mason (or any other City Council member) having unabated access has the potential of exposing the City to legal liabilities should there be an illegal dissemination. In both cases, it will be the taxpayer who will pay the legal bills. 

A WIN/WIN SOLUTION:

During my law enforcement career, I had the opportunity to work within the police department's "criminal records" and "internal affairs" unit.  Both offices collected and maintained confidential "legally protected" information and were staffed by both police and civilian personnelIn both instances, the office staff received training with respect to confidentiallity, dissemination, and the potential of criminal prosecution for State Law violations. 

Corporation Counsel Kleinman and the Roberts Administration need to establish policy and procedures that allow City Council members access to records maintained by the City of Hoboken.   That policy should include a mandate that any public official or City employee handling government records receive OPRA related training with respect to confidentallity, dissemination, and the potential of criminal prosecution for State Law violations.   

Information Requests by City Council members:  

  • Routine record requests that, in the opinon of Hoboken Corporation Counsel, do not have the potential of exposing the City and/or requestor to dissemination liabilities should continue to be made available to all City Council members.
  • Record requests that, in the opinion of Hoboken Corporation Counsel, create a legal concern/liability for illegal dissemination of "lawfully protected information" should be made available only to City Council members who have attended a "government official" OPRA training seminar.  The content of the seminar should ensure that the "record requestor" fully understands his/her liabilities as a government official with respect to OPRA and the dissemination of public records. Upon completion and documentation of the government oriented OPRA training, the liability for dissemination will fall on the shoulders of the person illegally disseminating the records.

Hoboken Corporation Counsel may also want to consider a written "information request and tracking" policy with procedures designed to document illegal dissemination and facilitate criminal investigation of Official Misconduct, N.J.S.A. 2C: 30-2.

OPRA TRAINING:

The Government Records Council makes training opportunities available for records custodians and other public officers and employees which explain the law governing access to government recordsThe public is always welcome to attend these training sessions. 

These training sessions are generally held in the 21 counties of the State for municipal clerks and other local and county government officials who participate in the process of fulfilling Open Public Records Act requests.  Additionally, training sessions are made available to state records custodians and officials who participate in the process of fulfilling Open Public Records Act requests.  Please check the training schedule for dates and times.


GOVERNMENT TRANSPARANCY:

Transparency in government is a delicate balancing act between the people's right to know and privacy issues.OPRA, the New Jersey Open Public Records Act, attempts to strike such a balance.

In the final analysis, if an elected City Official deems "unfiltered" record access as a necessary tool to do their job, they should be accommodated as long as they are fully aware of the laws and penalties governing that request. 

What do you think?  Please leave a comment.  


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