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Senator Weinberg and Senate President Sweeney discuss legislation to update Sunshine law and OPRA (6/14/12)

Corporate Closed Door Meetings At DEP Remain Secret Due TO OPRA “Privacy” Loophole

I happened upon a State House press conference yesterday by Senator Weinberg and Senate President Sweeney to discuss pending legislation to update the “Sunshine law”  (S1451 Open Government Meetings Act) and the Open Public Records Act (OPRA) (S1452) (read excellent NJ Spotlight coverage here).

So, as someone who files hundreds of OPRA requests at DEP and actively works on issues regarding transparency and open government at the state level, I sat in and listened. And I heard open government and public right to know activists heap praise on Senator Weinberg for her legislation.

I heard a lot about local government reforms – but nothing about state government and the important issues I work on, including a successful OPRA lawsuit and my efforts to reform OPRA practices by filing of  DEP rule making petitions.

Certainly, no one was talking bout THIS: Chemical Industry Lobbyists Met With DEP Commissioner Today

Hal Bozarth (L) "The Godfather of NJ Toxics" and Tony Russo of the NJ Chemistry Council sign in at DEP (10/1/09). They weren't there to talk about flag day!

Or any of this:

• COURT ORDERS RELEASE OF NEW JERSEY SCIENCE BOARD NOMINEES — Successful Open Records Suit to Reveal Industry Sponsorship of Science Board Picks
• WILL NEW JERSEY OPEN UP ENVIRONMENTAL DECISION-MAKING? — Corzine Denial of DEP Transparency Rules Creates Opportunity for Christie
• NEW JERSEY ENVIRONMENTAL LEADERS LAUNCH ETHICS REFORMS — Latest Corruption Scandals Spark Calls for Transparency & Whistleblower Measures
• NEW JERSEY SAYS SECRET MEETINGS KEY TO ENVIRONMENTAL POLICY — Petition for New Transparency Rules Rejected the Same Day Notice Is Published
• NEW JERSEY DOES ITS ENVIRONMENTAL BUSINESS BEHIND CLOSED DOORS— State Claims “Executive Privilege” to Shield Meeting Logs; Petition Filed
• NEW JERSEY POLLUTION AGENCY BUFFETED BY REVOLVING DOOR ISSUES— Corzine Urged to Impose Stricter Ethics Rules, Lobbying Transparency & Whistleblower Protection

I sat there with mounting frustration at what seemed to be exaggerated praise for minor reforms at the local level.

Far more important abuses of power at the state level were being ignored.

So, at the end, after the few softball questions from the State House press corps, I got to ask Senator Weinberg a tough two part question:

Senator: Do you agree that transparency and the public’s right to know you support at the local government level also should apply to Executive Branch State Departments?

And If so, does the public have a right to know about corporate lobbyists meetings with high level DEP officials?

This is particularly important given a recent media investigation (Todd Bates, APP) which revealed that DEP is meeting with polluters behind closed doors to negotiate enforcement fines. These meetings have resulted in millions of dollars of enforcement and compliance regulatory relief.

Senator Weinberg said of course she supported that – at which point I explained to her that DEP took the legal position that under OPRA, such information was exempt.

DEP’s legal rationale was that corporate lobbyists who met with DEP officials have a “reasonable expectation of privacy” and therefore meeting records are exempted under OPRA. Here is DEP’s “privacy” rationale:

“Disclosure of the Commissioner’s schedule and the schedules of Department staff also implicates privacy interests of the people with whom public officials meet. See Smith, supra, citing Gannett N.J. Partners, LP v. County of Middlesex, 379 N.J. Super. 205 (2005) and North Jersey Newspapers Company v. Passaic County Board of Freeholders, 127 N.J. 9, 16-18 (1992)(the requested schedule of the Commissioner is exempt from public access on the basis that it implicates privacy interests of persons who meet with public officials and is protected by executive privilege).”

I spoke with Weinberg’s Senate staffer after the conference and asked him if Weinberg was interested in amendments to close the DEP loopholes I just mentioned.

He indicated support – so, let’s see if he will deliver.

The bills will be heard soon by the Senate Budget Committee, so there is an opportunity to get amendments before it goes to the floor.

We’ll keep you posted.