Credit: Lowlova under CC BY-SA 4.0 via OpenverseBacked largely by the Democrats in control, the New Jersey Legislature voted Monday to rewrite the state’s open public records law, agreeing to more than a dozen changes that would make it tougher for people to gain access to documents created and maintained by public officials with their tax dollars.
The Legislature did keep in the law the first two paragraphs of the Open Public Records Act (OPRA) that for the last 22 years laid out the public’s right to get public records and is now awaiting action by Gov. Phil Murphy, a Democrat who is in his second term and barred from seeking reelection. Those hold that “government records shall be readily accessible” and that “any limitations on the right of access … shall be construed in favor of the public’s right to access.”
The continued inclusion of that language could be critical to help those who appeal the denial of public records requests that may result from all of the other changes to the law, because judges use such language interpreting legislative intent when such challenges land in court.
The measure ‘is not a bill that modernizes OPRA, it is a bill that decimates OPRA.’ — Antoinette Miles, New Jersey Working Families Party
The gist of the opposition: rewritten law would make it even harder for people to obtain public records
The Senate voted without any debate and by a bare minimum 21-10 to pass the bill, with Democrats who control that house providing all but three “yes” votes. Seven Republicans and three Democrats voted against the bill. Unlike the rest of the Senate session, the vote on the bill was not livestreamed, due reportedly to an error by the Office of Legislative Services. Later, the Assembly also voted to amend OPRA by a 42-27 vote, with seven Republicans helping the Democrats pass the bill and nine Democrats voting “no.”
Organizations representing the state’s municipalities and counties were the greatest proponents of the measure, which was fast-tracked in March, then resurrected last Thursday and passed by two committees without drafts of the amended bill available to the public on the OLS website. Dozens of nonprofits, good-government groups and civil rights advocates, as well as journalism organizations and individuals, opposed it. A recent FDU Poll said more than 81% of registered voters support the current law and oppose restricting the public’s right to records.
Bill ‘decimates OPRA’
Senate President Nicholas Scutari (D-Union), speaking briefly to reporters after the vote, said the bill will result in “a savings of taxpayer dollars.” After final Assembly passage, Antoinette Miles, state director of the New Jersey Working Families Party, said the measure “is not a bill that modernizes OPRA, it is a bill that decimates OPRA.”
Senate committee advances revisions, Assembly next
Some of the specific provisions of the bill that would limit the ability to get currently accessible records include:
- Requests would have to include the right amount of information; the bill provides that if a request includes more information than required and needs too much clarification or if it does not include all the information required, it can be denied.
- Obtaining letters, emails, text messages and social media postings would become much more difficult, with a requestor required to identify the person or job title, subject and “reasonable” time frame; even then, a request could be denied if it “would require research and the collection of information from the contents of government records and the creation of new government records,” which custodians have argued in the past.
- Special service charges imposed by agencies on requests they deem to involve extra time and effort would be considered “reasonable” and it would be up to the person making the request to prove otherwise if challenging any extra cost.
- If a records custodian directs a person to a document on the agency’s website and the person cannot find that record and still wants a copy, the custodian could charge double the normal fee.
- Immediate access to documents such as budgets, bills, vouchers, contracts and public employee salary and overtime information would no longer be required if that information is more than two years old.
- If an agency has a copy of a record but did not create that record, it would not have to provide it, but instead would direct the person requesting the document to the proper agency, if known.
- A custodian who is supposed to fulfill a request within seven days could take twice that long if redactions need to be made to the document.
- Fulfilling a request for a document that is in storage can take an additional 21 days.
- The bill codifies agencies’ repeated requests for extensions of time, while current law requires a response after seven days, a time limit now routinely exceeded.
- Most of the metadata behind a document would be exempt; only information about the author, editor and time of change would be provided.
- A person denied access to a document would have 45 days from the date of the denial to start an appeal.
- The Government Records Council, which would be revamped to hear appeals of records denials, or a court could award a “reasonable” attorney’s fee to the prevailing party in any proceeding but would only be required to do so if it is proven that the agency acted in bad faith or knowingly and willfully violated OPRA, which could be hard to prove.
Vague and imprecise
Vague language in the bill could leave requestors at the mercy of the records custodian, with some agencies erring on the side of transparency and others on the side of denying records. The use of the words “reasonable” and “reasonably” 33 times in the bill leaves many of the provisions open to interpretation. Also unclear is whether lawyers would be willing to take up denials on contingency, given the uncertainty about whether they would be paid their full fees or any fees at all.
The bill would also give a public agency the unusual power to seek a “protective order” against someone who sought records with the intent to impair government functions by limiting the number and scope of records the person could request.
Now the bill goes to Murphy’s desk for his consideration.
— Editor’s note: This story has been updated to correct references to the retention of the first two paragraphs of the Open Public Records Act.
The effort by lawmakers to restrict access ‘isn’t dead,’ forum is told
