Bill Text: NJ A4435 | 2014-2015 | Regular Session | Introduced
Bill Title: Requires non-binding mediation for disputes regarding access to public records.
Spectrum: Slight Partisan Bill (Republican 2-1)
Status: (Introduced - Dead) 2015-06-22 - Reported out of Assembly Committee, 2nd Reading [A4435 Detail]
Download: New_Jersey-2014-A4435-Introduced.html
Sponsored by:
Assemblyman JOHN J. BURZICHELLI
District 3 (Cumberland, Gloucester and Salem)
SYNOPSIS
Requires non-binding mediation for disputes regarding access to public records.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning mediation for disputes over public records and amending P.L.2001, c.404.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 7 of P.L.2001, c.404 (C.47:1A-6) is amended to read as follows:
7. A person who is denied access to a government record by the custodian of the record [,at the option of] shall have the right to file a complaint with the Government Records Council, established pursuant to section 8 of P.L.2001, c.404 (C.47:1A-7), and the Government Records Council shall refer the matter to mandatory non-binding mediation to facilitate the resolution of the dispute regarding access to government records, with a neutral trained mediator, selected by the council, who encourages and facilitates the resolution of the dispute. Mediation shall be a confidential, nonadversarial process having the objective of helping the parties reach a mutually acceptable, voluntary agreement. The mediator shall assist the parties in identifying issues, foster joint problem solving, and explore settlement alternatives.
If mediation does not resolve the dispute, the Government Records Council shall receive, investigate, hear, review and adjudicate the dispute, pursuant to section 8 of P.L.2001, c.404 (C.47:1A-7), and shall issue an advisory opinion in the matter as to whether the particular type of record is a government record which is accessible to the public.
Thereafter, the requestor [,may] ,upon serving the custodian of the requested record notice of the intent to institute a proceeding regarding access to a government record,shall have the right to:
institute a proceeding to challenge the custodian's decision to deny access to the requested record by filing an action in Superior Court [which] after the expiration of five days from the service of such notice of intent. The matter shall be heard in the vicinage where it is filed by a Superior Court Judge who has been designated to hear such cases because of that judge's knowledge and expertise in matters relating to access to government records[; or
in lieu of filing an action in Superior Court, file a complaint with the Government Records Council established pursuant to section 8 of P.L.2001, c.404 (C.47:1A-7)].
The right to institute any proceeding under this section shall be solely that of the requestor. Any such proceeding shall proceed in a summary or expedited manner. The public agency shall have the burden of proving that the denial of access is authorized by law. If it is determined that access has been improperly denied, the court or agency head shall order that access be allowed. A requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee in the event the Government Records Council opinion determined that the government record had been improperly denied.
(cf: P.L.2001, c.404, s.7)
2. Section 8 of P.L.2001, c.404 (C.47:1A-7) is amended to read as follows:
8. a. There is established in the Department of Community Affairs a Government Records Council. The council shall consist of the Commissioner of Community Affairs or the commissioner's designee, the Commissioner of Education or the commissioner's designee, and three public members appointed by the Governor, with the advice and consent of the Senate, not more than two of whom shall be of the same political party. The three public members shall serve during the term of the Governor making the appointment and until the appointment of a successor. A public member shall not hold any other State or local elected or appointed office or employment while serving as a member of the council. A public member shall not receive a salary for service on the council but shall be reimbursed for reasonable and necessary expenses associated with serving on the council and may receive such per diem payment as may be provided in the annual appropriations act. A member may be removed by the Governor for cause. Vacancies among the public members shall be filled in the same manner in which the original appointment was made. The members of the council shall choose one of the public members to serve as the council's chair. The council may employ an executive director and such professional and clerical staff as it deems necessary and may call upon the Department of Community Affairs for such assistance as it deems necessary and may be available to it.
b. The Government Records Council shall:
establish [an informal] a mandatory non-binding mediation program to facilitate the resolution of disputes regarding access to government records, for which the council may use the Dispute Settlement Office, in the Office of the Public Defender, to mediate such disputes;
receive, hear, review and adjudicate a complaint filed by any person concerning a denial of access to a government record by a records custodian;
issue advisory opinions, on its own initiative, as to whether a particular type of record is a government record which is accessible to the public;
prepare guidelines and an informational pamphlet for use by records custodians in complying with the law governing access to public records;
prepare an informational pamphlet explaining the public's right of access to government records and the methods for resolving disputes regarding access, which records custodians shall make available to persons requesting access to a government record;
prepare lists for use by records custodians of the types of records in the possession of public agencies which are government records;
make training opportunities available for records custodians and other public officers and employees which explain the law governing access to public records; and
operate an informational website and a toll-free helpline staffed by knowledgeable employees of the council during regular business hours which shall enable any person, including records custodians, to call for information regarding the law governing access to public records and allow any person to [request mediation or to] file a complaint with the council when access has been denied;
In implementing the provisions of [subsections d. and] subsection e. of this section, the council shall: act, to the maximum extent possible, at the convenience of the parties; utilize teleconferencing, faxing of documents, e-mail and similar forms of modern communication; and when in-person meetings are necessary, send representatives to meet with the parties at a location convenient to the parties.
c. At the request of the council, a public agency shall produce documents and ensure the attendance of witnesses with respect to the council's investigation of any complaint or the holding of any hearing.
d. [Upon receipt of a written complaint signed by any person alleging that a custodian of a government record has improperly denied that person access to a government record, the council shall offer the parties the opportunity to resolve the dispute through mediation. Mediation shall enable a person who has been denied access to a government record and the custodian who denied or failed to provide access thereto to attempt to mediate the dispute through a process whereby a neutral mediator, who shall be trained in mediation selected by the council, acts to encourage and facilitate the resolution of the dispute. Mediation shall be an informal, nonadversarial process having the objective of helping the parties reach a mutually acceptable, voluntary agreement. The mediator shall assist the parties in identifying issues, foster joint problem solving, and explore settlement alternatives.] (Deleted by amendment, P.L. , c. (pending before the Legislature as this bill)
e. If [any party declines mediation or if] mediation fails to resolve the matter to the satisfaction of all parties, the council shall initiate an investigation concerning the facts and circumstances set forth in the complaint. The council shall make a determination as to whether the complaint is within its jurisdiction or frivolous or without any reasonable factual basis. If the council shall conclude that the complaint is outside its jurisdiction, frivolous or without factual basis, it shall reduce that conclusion to writing and transmit a copy thereof to the complainant and to the records custodian against whom the complaint was filed. Otherwise, the council shall notify the records custodian against whom the complaint was filed of the nature of the complaint and the facts and circumstances set forth therein. The custodian shall have the opportunity to present the board with any statement or information concerning the complaint which the custodian wishes. If the council is able to make a determination as to a record's accessibility based upon the complaint and the custodian's response thereto, it shall reduce that conclusion to writing and transmit a copy thereof to the complainant and to the records custodian against whom the complaint was filed. If the council is unable to make a determination as to a record's accessibility based upon the complaint and the custodian's response thereto, the council shall conduct a hearing on the matter in conformity with the rules and regulations provided for hearings by a State agency in contested cases under the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), insofar as they may be applicable and practicable. The council shall, by a majority vote of its members, render a decision as to whether the record which is the subject of the complaint is a government record which must be made available for public access pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented. If the council determines, by a majority vote of its members, that a custodian has knowingly and willfully violated P.L.1963, c.73 (C.47:1A-1 et seq.), as amended and supplemented, and is found to have unreasonably denied access under the totality of the circumstances, the council may impose the penalties provided for in section 12 of P.L.2001, c.404 (C.47:1A-11). A decision of the council may be appealed to the Appellate Division of the Superior Court. [A decision of the council shall not have value as a precedent for any case initiated in Superior Court pursuant to section 7 of P.L.2001, c.404 (C.47:1A-6).] All proceedings of the council pursuant to this subsection shall be conducted as expeditiously as possible.
f. The council shall not charge any party a fee in regard to actions filed with the council. The council shall be subject to the provisions of the "Open Public Meetings Act," P.L.1975, c.231 (C.10:4-6), except that the council may go into closed session during that portion of any proceeding during which the contents of a contested record would be disclosed. A requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee in the event the Government Records Council opinion determined that the government record had been improperly denied.
g. The council shall not have jurisdiction over the Judicial or Legislative Branches of State Government or any agency, officer, or employee of those branches.
(cf: P.L.2001, c.404, s.8)
3. This act shall take effect immediately.
STATEMENT
This bill would establish mandatory non-binding mediation for any dispute regarding access to a government record. Under this bill, the Government Records Council may, but is not required, to use the Dispute Settlement Office, within the Office of the Public Defender, to mediate any dispute regarding access to a government record. If mediation fails, the Government Records Council shall investigate the complaint, hold a hearing and adjudicate the claim for access to the records, which shall include the issuance of an advisory opinion as to whether the record sought is a government record which is accessible to the public.
After adjudication by the council, a person seeking access to a government record shall have the right to institute a proceeding in Superior Court. If the person seeking a government record prevails in a council or court proceeding, the person shall be entitled to a reasonable attorney's fee, if the council opinion determined that the government record had been improperly denied.
Under current law, a person who is denied access to a government record may either institute a proceeding in Superior Court to challenge the custodian's decision, or a person may file a complaint with the Government Records Council. Presently, if a person elects to file a complaint with the council, a person has the option of participating in mediation, but is not required to participate in mediation.
According to statistics of the Government Records Council, more than half of all mediated disputes concerning public records are resolved by mediation, but only approximately 20 percent of all record complaints are referred to mediation. Therefore, the mediation program established in this bill could potentially resolve many more disputes over access to government records.
