NJ journalists, lawyers raise red flags about proposed changes to state open records law (2024)

3-minute read

Sammy Gibbons,Katie SobkoNorthJersey.com

A group of bills introduced in the state Assembly that would make significant changes to New Jersey’s Open Public Records Act has alarmed transparency advocates and could have a profound impact on the ability of journalists and lawyers to hold local and state government officials accountable.

The package of four bills, sponsored by Assemblyman Joe Danielsen, D-Somerset, proposes:

  • Changing how people trying to find state and local government documents can appeal a request that has been denied.
  • Changing the route for businesses to request records.

The legislation also proposes limits on how often people can file requests and eliminates access to records related to public agency contracts, permits and registrations.

What does OPRA do now?

Currently, OPRA protects people who file lawsuits to gain access to previously denied documents from paying attorney fees if they win their cases. Legal costs, in turn, are covered by the government entity that originally denied the request. The new bill would change that so the local government entity has to pay only its standard counsel rate, which is often much lower.

Watchdog: Backroom deals, COVID deaths, toxic secrets: NJ OPRA made these investigations possible

“Public agencies don’t give up records that make them look bad without a fight, and a requestor needs a lawyer for that fight to be fair,” said CJ Griffin, an attorney who has litigated hundreds of OPRA cases, including many for NorthJersey.com. “This bill guts that fee-shifting provision, meaning few people except the very wealthy will be able to enforce their rights to public records.”

Griffin worries that public agencies will increasingly refuse to release records if fee-shifting becomes optional, because “there’s little consequence for denying a request.”

Bill A5616 proposes allowing records custodians to deny a request if it requires research or a review of government records, and denial on those grounds cannot be appealed.

“Anyone who has ever filed an OPRA request knows that agencies constantly claim that the requests require 'research,' but we challenge those in court and the denial rarely holds up,” Griffin said. “This [proposed bill] is dangerous and essentially gives a custodian the power to deny any request they want without any oversight or check on that power.”

Currently, people can challenge records request denials before a judge in the Superior Court or before the Government Records Council. However, the recently introduced bills would, if passed, require that people take their appeals only to the council. The council is composed of three people selected by Gov. Phil Murphy, and reports have said their reviews take as long as two years. Courts often issue decisions much more swiftly.

Additionally, the bill drafts recommend requiring custodians to deny records requests seeking the same type of document for a different time frame if it's filed within 30 days of the initial request.

No bill yet on Senate side

No companion legislation has been introduced in the state Senate yet. State Sen. Paul Sarlo, D-Bergen, said last month that he was working on a “positive and transparent overhaul” of the law, calling his efforts a “transformational update."

That potential legislation isn’t ready for introduction yet. The budget committee chair said Tuesday that it is still in progress.

“I have a bill that we’ve been working on very deliberately, meeting with all the stakeholders, and we’re going to spend the summer working on it and continuing to look at it,” Sarlo said. “We want to make sure we get buy-in from all the various stakeholders. It isn’t something that should be rushed.”

Senate President Nick Scutari said he hadn’t seen the bills presented by Danielsen yet and that it was a “surprise to me to see that,” but he’s not opposed to reforming the process overall.

“I’m certain there’s some things that can be done better," Sarlo said. "I don’t really know what that is yet, but I understand they’re studying the topic, and when that’s completed, then we’ll see it.

“I think that’s bipartisan," he said. "I’ve spoken to the minority leader about that, on both houses, and they’re open-minded to making it work better, and I think that’s a good thing.”

The Murphy administration declined to comment on pending legislation. Danielsen did not respond to a request for comment.

A spokesperson for Assembly Speaker Craig Coughlin said the speaker is “focused on the budget this week.”

NJ journalists, lawyers raise red flags about proposed changes to state open records law (2024)


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