PACKET EDITORIAL, June 27
By:
In 1973, at the height of the Watergate scandal, Brendan Byrne ran for governor of New Jersey promising “government under glass” — a series of reforms aimed at moving the process of doing the public’s business out of smoke-filled rooms and into the public arena.
To that end, one of Gov. Byrne’s first actions on taking office was the introduction of the Open Public Meetings Act, better known as the “Sunshine Law.” Following its swift passage by the Legislature, this law assured that any formal action or discussion (except for certain sensitive matters involving personnel or ongoing litigation) undertaken by any state or local government agency in New Jersey had to take place in public. It was a landmark law, serving as a national model — and it gave citizens some measure of confidence that most, if not all, of the public’s business was now being conducted in public.
It seems especially ironic, then, that a state that led the nation in opening up government meetings to the public and press some three decades ago should lag so far behind the rest of the country today in providing access to public documents. For as progressive as New Jersey’s Open Public Meetings Act was in its day, the state’s Right-to-Know law — passed in 1963 and essentially untouched since then — leaves citizens of the Garden State light years behind their counterparts in other states in their quest to obtain even the most basic information about the actions of their state and local governments.
Here’s the problem. In most states, records compiled and retained by government agencies are assumed to be public documents — accessible to citizens on demand — unless specifically exempted by law or regulation. In New Jersey, only those records that are required to be maintained by law are considered public documents — and even then, broad categories of files are exempt. Interagency memos, for example (such as those that may have been exchanged among high-level state officials in the weeks and months leading up to the state motor-vehicle inspection fiasco), are not considered public documents under the law. Nor are communications between parties in reaching an out-of-court settlement of a sexual harassment suit involving a former Assembly speaker, or correspondence between municipal officials and property owners over purchase of public lands or a host of other documents not required to be maintained by government agencies.
Recent efforts by the New Jersey Press Association, New Jersey Common Cause and numerous citizens’ groups to reform the state’s public-records law have run into major roadblocks. The attorney general’s office wants to carve out exemptions for virtually all investigations, present or past. The Legislature wants all communications with staffers and constituents to be free from public scrutiny. The New Jersey League of Municipalities, concerned that local governments may have to disclose information that could be embarrassing, and the state’s public colleges and universities, fearful that disclosure of certain research documents could give an unfair competitive advantage to private institutions, also are fighting the proposed changes.
Some of these concerns may be legitimate, others groundless. Clearly, there needs to be some balance between the government’s interest in preserving confidentiality, where appropriate, and the public’s interest in disclosure of public documents. In New Jersey, however, this balance does not exist. In most other states, documents are presumed to be public unless government can prove that there’s a good reason to withhold them. But in New Jersey, the burden is on citizens to prove that the public’s right to see a document — which they themselves have not even been allowed to see — outweighs the government’s interest in confidentiality.
That’s backwards. And that, at the very least, should be remedied.