What Is “Open” Government?

Many people are surprised to learn that New Jersey, like many other states, has a policy of open government.  There are laws that have
been enacted over the last 50 years that are specifically designed to increase
the “transparency” of the decision making process of government, both in terms
of meetings of certain government bodies and agencies as well as access to
government records.  There are however limitations in these areas, which may make the term seem more like a buzzword than an actual legislative goal.

The Open Public Meetings Act, which became law in the 1970s, was
created to insure that the business of government takes place in public before the eyes and ears of the citizens of New Jersey.  This requires that adequate
notice of meetings be given to the public, that the public be admitted to the
meeting and, in certain matters the public be given the opportunity to
speak.  The limitations include where, in certain circumstances, where “the public interest would be clearly endangered or the personal privacy or guaranteed rights of individuals would be clearly in danger of unwarranted invasion,” portions of a meeting may be held in closed session.  The Act only applies to every multi-member voting body constituted by law either to spend public funds or to affect
people's rights.  It does not apply to informal or advisory bodies or meetings of officials and advisors and certain specified state agency meetings.  In addition, it does not apply to typical partisan caucus meetings, chance encounters of members, or to any meeting of the public body which is not open to all the members of the body so that a quorum is not present.  However,
any action taken by an applicable voting body must be done in public, even with
these limitations.

Public records are much more complicated.  The law in this area was significantly
changed with the adoption of the Open Public Records Act (“OPRA”) a decade ago.  It applies to all records, in any medium in which they are kept.  It applies any record that “has been made, maintained or kept on file in the course of his or
its official business by any officer, commission, agency, or authority of the
State or any political subdivision thereof, including subordinate boards
thereof, or that has been received in the course of his or its official
business by any such officer, commission, agency, or authority of the State or
of any political subdivision thereof including subordinate boards thereof.” That
is a wide range of stuff.  However, there are dozens of exceptions for everything from autopsy photos to trade secrets to surveillance techniques of the police department.  Further, the definition of Public Record in OPRA specifically excludes “inter-agency or intra-agency advisory, consultative or
deliberative material.” 

One of the most common complaints at many meetings is “How
can you vote on this when copies have not been given to the public?”  The answer in most cases is that such items are only “deliberative material” until such time as the voting body approves it.  While this may seem like a limitation on the citizens’ right to comment, it is not the intent of the law that the public be involved in every stage of the decision making process.  The law does require that any deliberations done by a quorum be done in full public view, and records relating to such decisions can then copied for anyone requesting them so that the actions taken can be later reviewed either by the courts or the citizens at the ballot box.