Critics warn senator’s bill to amend state’s public records law would gut transparency

New Jersey lawmakers are set to consider legislation Monday that critics warn would gut the state’s public records law, threatening transparency in a state notorious for corruption.

The bill Sen. Paul Sarlo (D-Bergen) introduced Monday is the latest legislative effort to add new hurdles to the Open Public Records Act, which was meant to expand public access to government records and is commonly referred to as OPRA. A series of bills that proposed similar restrictions failed to advance in the last legislative session.

Sarlo didn’t respond to the New Jersey Monitor’s request for comment Monday, but lawmakers in the past have blamed commercial requesters for blitzing municipalities with so many requests they’ve had to hire more staff. Supporters of amending the law also cite privacy concerns.

Transparency crusaders said proposed restrictions would impact all records requesters, not just those with a commercial interest.

The more controversial changes would allow agencies to exempt records and seek a protective court order if they deem requests harassing; make “draft” documents private, which critics worry would be abused to deny access; and end a now-mandatory rule that requires public agencies that lose records disputes in court to pay the winning parties’ legal fees.

“This gets pretty close to a repeal of OPRA. It’s going to hobble it to a point to make it practically useless,” said John Paff, a prolific records requester who chairs the New Jersey Libertarian Party’s open government advocacy project.

Committees in the Senate and the Assembly are scheduled to consider the bill at separate 10 a.m. public hearings on Monday at the Statehouse in Trenton.

New Jersey’s public records law is a ‘sword and shield’ against corruption, citizens say

What the bill would do

Sarlo’s proposed restrictions take up 29 pages.

The bill would give custodians more time to respond to some requests. State law now requires a response within seven business days, although custodians routinely flout that. The new legislation would lengthen the timeline for clerks to produce records in storage and to accommodate Daniel’s Law, which prohibits the disclosure of home addresses for certain public officials like judges, prosecutors, and law enforcement officers.

Other provisions would:

• Restrict access to emails and calls by exempting logs of both and requiring requesters to list a “specific subject matter” and “discrete and limited time period” and identify the employee by name (not title) whose email must be searched.
• Create a uniform definition of “personal identifying information,” which records custodians often redact, and exempt email and home addresses from disclosure.
• Mandate that requestors use a form of the custodian’s choosing. While some governments now have their own forms and portals, people aren’t required by law to use them and can submit records requests in any format.
• Create a task force to examine existing public access to police records and recommend changes. The legislation specifies that the chair would be the state attorney general or his designee and directs four other members to represent law enforcement; county or municipal prosecutors; the New Jersey League of Municipalities; and the New Jersey Association of Counties.
• Give a records custodian more discretion to deny duplicative and anonymous requests.

The bill also has several provisions unlikely to spark objections, such as encouraging public agencies to digitize documents and make them searchable online, and allocating state funding to facilitate such a shift.

It also would add more public members to the Government Records Council, the understaffed body that responds to complaints from people denied records. That council typically takes two years to resolve cases and has a case backlog numbering in the hundreds.

The bill contains an unspecified $8 million appropriation to carry out its provisions.

A fast-tracked bill ignites fast-tracked backlash

Sarlo introduced the bill Monday, but its text wasn’t publicly available until late Tuesday. The details unleashed a furor on social media, where longtime political columnist Charles Stile renamed it “the New Jersey Closed Access to Public Records Act of 2024” and former Sen. Loretta Weinberg, a longtime OPRA defender, denounced it as “a complete gut of OPRA.”

Many noted the irony of Sarlo introducing it just before Sunshine Week next week, a dedicated time of advocacy for those demanding government accountability during an era of media decline.

“This bill would move New Jersey back into the dark ages when it comes to government accountability,” Weinberg wrote on social media. “Call your senator. I’m embarrassed that a Bergen County senator is the prime sponsor.”

The legislation has support from municipal officials, who have long griped that responding to OPRA requests takes up an increasing amount of their time. In particular, they say, commercial requesters have saddled crippling costs on municipalities. Sarlo’s legislation would restrict commercial access by prohibiting records requests made by or for data brokers.

“We are not opposed to transparency or public access. But no one should stick their head in the sand and say that there haven’t been abuses, which impact the municipal operations, impact privacy concerns, and ultimately, the costs are borne by the taxpayers,” said Michael Cerra, executive director of the New Jersey League of Municipalities.

Cerra couldn’t quantify how many commercial requests municipalities receive, nor how much they might have consequently spent to increase staffing.

“A lot of it is anecdotal,” he said. “But I don’t think there’s any question that there there’s an overabundance of third-party commercial requests that essentially have the public records custodians doing their due diligence for them.”

Cerra also cited privacy concerns, saying OPRA hasn’t caught up to technological advances in the past two decades that have expanded information access.

“Twenty years ago, we didn’t have that identity theft, data mining, cyber-attacks because of exposure of metadata. The law has not kept pace with technology and the world around it,” Cerra said. “Nothing is perfect, but I think this is an effort to modernize the act to address those legitimate privacy concerns.”

Paff said if commercial requesters are the problem, then policymakers should narrowly amend the law to target the problem, rather than subjecting it to wholesale gutting. He rejected supporters’ complaints that OPRA compliance has become too costly.

“The larger the government gets, the more it needs to be held accountable. Yes, maybe you need to hire another deputy clerk. But why is it a non-starter to hire somebody for $85,000 a year to manage OPRA, but no one objects when (Gov. Phil) Murphy wants to hire another aide?” Paff said. “What is an appropriate amount of money to keep citizens informed?”

Rather than cost concerns, Paff blamed politicians’ propensity for secrecy as their motivation for trying to tweak OPRA. He likened them to the Wizard of Oz who doesn’t want anyone to look behind the curtain.

“I’ve been to these hearings before, and a lot of times, minds are made up. Some shaky arguments are advanced and accepted as the unvarnished truth and things just get gaveled through,” Paff said. “I hold out hope there will be actual, genuine, authentic questioning and analysis.”

Attorney Walter Luers, who specializes in public records cases, predicted that the bill would backfire, because it would result in more records denials — and more lawsuits from people fighting those denials, which will drive up municipalities’ costs. It also will hurt low-income requesters who lack the resources to challenge denials in court, he added.

“They want to get fewer OPRA requests, but they’re going to get more subpoenas,” Luers said. “Instead of resolving OPRA cases quickly or resolving them pre-suit, they’re going to go to litigation. And instead of being litigated quickly at summary proceedings, there’s going to be fights and briefing over all these other different issues, in terms of counsel fees, in terms of whether someone’s a commercial provider, and in terms of whether someone’s making an OPRA request related to some other litigation.”

He added: “If they want to go and shoot themselves in the foot, that’s fine, because they’re holding the gun.”