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With two weeks to go before New Jersey’s Open Public Records Act takes effect, its proponents say its good intentions are being compromised by faulty execution. The new law granting wider access to public records becomes effective July 8, but the state has yet to staff the five-member Government Records Council that will implement and enforce the statute. The state also has failed to budget enough money to fulfill its mandate under the new law, according to the New Jersey Foundation for Open Government, a watchdog organization. The Open Public Records Act, N.J.S.A. 47:1A-1 et seq., makes all government records public unless specifically exempted — such as police investigative materials, autopsy photos, security matters and trade secret issues. The previous law provided access only for documents required to be kept. The new law also places time limits on complying with records requests, imposes fines of up to $5,000 for violators, and allows the Government Records Council to intervene in access disputes, set up a mediation program, and, if needed, issue advisory opinions. The legislative and judicial branches of state government are exempt from the law. The law’s advocates are particularly irked by the delay in staffing the Government Records Council and are concerned about the council’s structure and focus. The foundation is asking that the council have a “strong and competent” executive director with civil service protection, an independent legal staff and a policy of defending its decisions when they are appealed. “Is this council going to act as an advocate for public records, or are they going to be a screen to filter out requests?” asks John Connell, a partner with Archer & Greiner in Haddonfield, N.J., who represents many of the state’s newspapers. “You don’t really know until the composition of that council is determined.” The council is to be made up of one member each from the Department of Education and the Department of Community Affairs, along with three public members appointed by the governor. Despite what the law’s advocates say is an abundance of volunteers, the state has made no appointments, according to several applicants. Officials in Trenton, N.J., were close-mouthed this month when asked about implementation of the new law. Marc Pfeiffer, the assistant commissioner in the New Jersey Department of Community Affairs in charge of implementing the council, referred questions to department spokesman E.J. Miranda, who asked for questions about the program to be submitted in writing but did not respond. Grayson Barber, a solo practitioner in Princeton, N.J., who concentrates on First Amendment issues, says she volunteered for a 13-member Privacy Study Commission, also to be created under the new law. The commission’s mission is to seek a balance between increased access and privacy concerns, and make recommendations to the governor and Legislature within 18 months. Barber says the governor’s office asked her whether she would be willing to consider serving on the Government Records Council instead. She said yes, but has not heard back. The New Jersey Press Association has nominated Arlene Turinchak, a media lawyer and associate at Somerset, N.J.’s McGimpsey & Cafferty, to sit on the council. And the same time, the New Jersey Foundation for Open Government — founded by members of the New Jersey Society of Professional Journalists, the American Civil Liberties Union of New Jersey and the League of Women Voters of New Jersey among others — nominated four members. They are Guy Baehr, recording secretary for the foundation and a former Star-Ledger reporter; Doug Krisburg, a community activist from North Plainfield; Ron Miskoff, a past president of the New Jersey Society of Professional Journalists; and Ingrid Reed, director of the Eagleton New Jersey Project at the Eagleton Institute of Politics in New Brunswick. They, too, have not heard anything, according to Baehr. Funding is also an issue. A study by the foundation in April said New Jersey would need at least $1.2 million to carry out its mandate under the first year of the new law, plus $200,000 for public education efforts. The foundation arrived at the $1.2 million figure after studying similar agencies in seven other states. The foundation estimates that 893 records disputes would arise each year in New Jersey, with a per-case cost of about $1,300, once staff and other expenses are factored in. During a June 8 seminar organized by the foundation, however, Pfeiffer said the state had budgeted $500,000 for the law’s first year, according to several people who attended. Barber adds that the $95,000 the law set aside for the privacy commission has been eliminated from the state budget, making the panel’s establishment uncertain. Other aspects of the law’s implementation are troubling to some of the law’s advocates. For example, the law calls for records disputes that land in Superior Court to be heard by a judge designated because he or she has “knowledge and expertise in matters relating to access to government records.” However, Richard Williams, administrative director of the courts, told assignment judges at a recent meeting that he would let them decide whether to designate one judge or assign cases to whichever judge is available, according to judiciary spokeswoman Winnie Comfort.

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