In a blow to transparency and accountability for New Jersey residents, Gov. Phil Murphy signed a bill Wednesday that will effectively gut access to public records.
The legislation curtails the public's access to government documents and data. Specifically, it would:
- Continue to limit access to government email and text messages.
- Allow public agencies acting as records custodians to charge heavy fees to release information — without the burden of demonstrating that the released information is complete.
- Render it nearly impossible for New Jersey attorneys to combat instances when records requests are denied by public entities. As proposed, the law disables a current feature of OPRA that allows attorneys to recoup fees from agencies that wrongly deny requests.
Advocates have said that Murphy's signature erases decades of progress in gaining access to documents and information paid for by New Jersey taxpayers.
“The public opposition to S2930/A4045 was a powerful display of democracy at its best – advocates, stakeholders, and 81% of voters from across the ideological spectrum made it clear that New Jersey should be strengthening government transparency, not undermining it in backroom deals," said Sarah Fajardo, policy director of the ACLU of New Jersey. "It’s shameful that despite overwhelming concerns from their constituents, lawmakers fast-tracked,and the governor signed, a bill that severely restricts access to government records and limits the public’s ability to hold elected officials accountable. But we know that voters will have the last word at the ballot box next year — and maybe then Legislators will remember who they are meant to serve.”
The bill was introduced to the Legislature in March. While it sped through the state Senate budget committee, chaired by its sponsor, state Sen. Paul Sarlo, a Bergen County Democrat, it was pulled from consideration by the Assembly Appropriations Committee for amendments just minutes before it was scheduled to be heard.
Advocates recognized at that time that the bill would likely not be gone for long. It reappeared in mid-May in committee in both chambers where it was met with hours of testimony in opposition. Ultimately, it cleared both committees and passed by both full chambers within five days.
Those opposed to the bill continued to be vocal and called on the governor to veto the legislation. Murphy did not comment on the bill while it was pending in the Legislature — which is not unusual — but did speak more broadly about OPRA reform during regular "Ask Governor Murphy" segments on WNYC.
In May, he said it should be updated but “you can’t sacrifice something that I think is sacrosanct to a whole lot of people, including yours truly, which is transparency.” That echoed his sentiments from March when he said he is “all in on transparency.”
Before its approval in the Legislature, lawmakers said the bill was needed to cut down on commercial records requests and data brokering, but provisions to limit the latter were removed from the final bill and commercial entities can now have their requests expedited — for a fee.
The bill was sponsored in the Senate by Sarlo, D-Bergen, and state Sen. Anthony Bucco Jr., R-Morris, and by Assemblyman Joseph Danielsen, D-Somerset, and Assemblymember Victoria Flynn, R-Monmouth. While Danielsen and Flynn defended the bill on the chamber floor before the vote, Sarlo did not and Bucco was not present.
In drafting the bill, the legislation's sponsors are listening to the concerns of small-town New Jersey mayors, according to State Senate President Nick Scutari.
Editorial:Will Murphy enact OPRA's destruction? He must veto an affront to democracy
“This isn’t about us," said Scutari, who noted the Legislature is exempt from OPRA requests. "This is what I heard on my first day as Senate president at the League of Municipalities when I wasn’t even sworn in yet,” he said.
There were 21 votes in favor and 10 votes against. Nine state senators did not vote, including state Sens. James Holzapfel, Shirley Turner and Bucco who were not present.
The bill passed the lower chamber with 44 votes in favor, 25 against, one abstention and 10 members not voting.
The most recent version of the bill removes the presumption-of-access clause at the beginning of the OPRA statute, which notes that “government records shall be readily accessible,” but the Senate Majority Office said the section "will remain intact as part of the OPRA law.”
“That section is not being removed from the OPRA law, just from the bill," said Richard McGrath, spokesman for the Senate Democrats. "It came out of the legislation because that section of the law is no longer being amended."
What will the legislation do to gut OPRA?
The updated bill includes the renewed ability to make anonymous requests and will continue to allow requesters to seek call and email logs and digital calendars.
It implements stricter requirements on how to request things like texts and emails, including specific accounts, times, topics and titles.
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There are modifications to the provision limiting access to metadata to allow for access only to the "portion that identifies authorship, identity of editor, and time of change."
Language restricting data brokers and commercial entities that resell information obtained through OPRA was removed.
The parts that remain mostly intact is one of the most controversial, known as the fee-shifting provision. This provision previously required public record custodians that had not, according to a judge, properly provided records to pay the requesters' attorney fees.
The bill initially changed that to say winners of OPRA lawsuits "may" be entitled to legal fees if the public agency is found to have knowingly violated the law or unreasonably denied access. In its amended form, the bill still eliminates the attorney fee requirement but does allow for judges to decide that fees are warranted if the denial was unreasonable, if the agency “acted in bad faith, or knowingly and willfully violated” the law.
The amendments also include language that would allow for a court to “issue a protective order limiting the number and scope of requests the requester may make” if they “sought records with the intent to substantially interrupt the performance of government function.”
The initial OPRA legislation was first enacted in 2002 and requires local, county and state government entities to provide the public with access to government records in New Jersey.
Katie Sobko covers the New Jersey Statehouse. Email: sobko@northjersey.com
