New Jersey’s View on “Public” Records (part 4)
(To illustrate the difficulties consumers face in accessing public records on attorney licensing, we are providing an ongoing account of Avvo’s attempt to obtain attorney licensing information from the state of New Jersey. See Part 1, Part 2 and Part 3)
New Jersey, like many states, has an “Open Records” act that renders most government records available to the public. New Jersey’s act is, in many ways, a model of openness – it contains a sweeping presumption that the public will have access to government records, it specifies relatively easy procedures for appealing a denial of a records request, and even provides for the imposition of penalties on recalcitrant records custodians.
Unfortunately, the New Jersey Court system – which includes the agencies responsible for attorney licensing and discipline - doesn’t think it applies to them. They may have good reason for this – other states specifically carve the judiciary out of Open Records Act coverage, and there likely are some separation of powers issues involved in imposing any such legislation on the courts. However, New Jersey’s OPRA on its face doesn’t appear to exclude the courts:
“’Government record’ or ‘record’ means any [record] that has been made, maintained or kept on file . . . by any officer, commission, agency or authority of the State or of any political subdivision thereof.” (OPRA; NJ Statute 47:1A)
Dispute this seemingly-broad applicability, the Courts have simply decided that the OPRA doesn’t apply to them. To some extent, this shouldn’t matter – New Jersey has a Court Rule (NJ Court Rule 1:38) that provides for wide-ranging public access. But Rule 1:38 doesn’t go as far as the OPRA, and it doesn’t contain the procedural safeguards – right to appeal, penalties, etc. - of the OPRA.
We’ve run headlong into this problem in our quest for records on New Jersey attorneys. We’ve also made an interesting discovery: At the same time we are beating our heads against the wall to get what should be very basic records out of the Court administration, the New Jersey Supreme Court is nearing the end of a several-years-long process to revise and expand Court Rule 1:38 to more closely match the coverage and breadth of the OPRA.
This is, of course, a laudable goal. The proposed Rules are notable for their openness and support of the public’s right to know. The disappointing part is that the proposed changes to Rule 1:38 flat-out excludes the Court’s regulatory agencies . These agencies - a category largely made up of the agencies governing judicial conduct and attorney licensing, conduct and discipline - are given at least an additional year to devise their own rules (see pp. 59-60 of the Special Committee’s Report). Why? The Special Committee simply concludes, sans any analysis, that these agencies “may require special consideration.” While the rules ultimately adopted by the agencies must “start from a presumption of openness and be consistent with the spirit” of the Special Committee’s Report, there is no guarantee that they will be as expansive as the Court’s rules or the OPRA, or that it will be any easier for the public to access these records. What’s more, it will be at least a year before any such rules are in effect.
Comments on the Special Committee’s Report were due March 24, 2008 - Avvo, among others, has asked that the Special Committee reconsider whether these agencies need special treatment. After all, if the Proposed Rule 1:38 is sufficient to cover the variety of messy business that makes up the daily life of the Courts - from domestic violence to intellectual property disputes; from traffic infractions to gangland trials - shouldn’t it be more than adequate to cover the relatively mundane business handled by these housekeeping agencies?