Despite outcry, Senate lawmakers advance bill overhauling New Jersey’s public records law

Senate lawmakers approved a controversial bill Thursday to retool the Open Public Records Act over a chorus of objectors who warned lawmakers were pushing government secrecy.

The Senate’s budget committee approved the bill in a 10-3 vote after more than three hours of testimony that consisted mainly of warnings that the bill would essentially make the public records law inoperable to residents because it would kill the law’s enforcement mechanism. Two Republicans, Sens. Declan O’Scanlon and Michael Testa, and one Democrat, Sen. Andrew Zwicker, voted no.

“The bill remains deeply flawed. Many records that are currently available to the public will be cloaked in secrecy or otherwise made more difficult if the bill is enacted, and wrongful denials will be impossible for many to challenge,” said Thomas Cafferty, general counsel for the New Jersey Press Association.

The bill, which returned to the Legislature with amendments this week after public outcry forced lawmakers away from the proposal in March, would remove a mandate that courts award attorney’s fees to requestors who successfully overturn illegally denied records requests.

Amendments made Thursday morning require attorney’s fees be awarded if there is a legal finding of bad faith or a judge rules a custodian unreasonably denied access or knowingly violated the law, conditions critics said would effectively bar low-income residents from securing legal representation and increase municipal costs by extending litigation.

“The problem with making it so that it is conditional on the court deciding to award them is you’ll never be able to find lawyers who are willing to take the case,” said Joe Cohn, a civil rights attorney who’s running for the 3rd District House seat. “Even then, you only have an entitlement when there’s a finding of bad faith, which means that every case is going to have discovery … That will dramatically increase the cost to the state.”

Officials from the League of Municipalities and the New Jersey Association of Counties suggested fee shifting needs to be reined in because attorneys who represent records requestors are awarded fees that are higher than those paid to municipal and county attorneys.

“Although we certainly support the amendments on the fee-shifting piece of it, we would say that it should go further… and place a cap. I think $300 is a reasonable cap. We thought maybe $200 or $250 an hour, make it similar to what local governments pay their outside counsels,” said John Donnadio, the association’s executive director.

Critics of the bill say legal fees in records disputes are already reasonable because judges overseeing the disputes do not approve unreasonable fees.

Unlike most attorneys representing OPRA requestors, government lawyers or outside counsel retained by governments are paid regardless of whether they win a case.

Critics also took issue with a provision in the bill regarding special service fees, which records custodians charge for unusually complex requests. Under the current system, custodians are responsible for justifying special service fees, but the bill says such fees would be presumed to be reasonable.

This would allow governments to de facto deny records requests by charging exorbitant fees, and requestors would be responsible for proving the fees are unreasonable, even without access to any of the underlying information, critics said

Critics said that provision would also boost legal expenses for towns and counties because it would necessitate expert testimony and depositions in court.

Representatives from the New Jersey League of Municipalities and the New Jersey Association of Counties declined to discuss the provision when pressed by legislators at Thursday’s hearing.

Other critics took umbrage at a provision that would allow governments to sue requestors they believe are seeking to “substantially interrupt the performance of government function,” worrying it would chill residents from even submitting OPRA requests for fear of retaliatory litigation. The bill would also allow a judge to limit the number or scope of requests the requestor could file if the government prevails.

“You can’t rightly claim that the public has the freedom to access public records while at the same time imposing a looming threat of retribution for people who dare to use that right,” said April Nicklaus, deputy executive of Voter Choice New Jersey, a group that favors ranked-choice voting.

Shifting explanations

The bill’s supporters have presented shifting explanations for the proposal since it was first introduced. Initially, it was pitched as a means of addressing records requests filed by commercial entities, which local officials and representatives from the League of Municipalities and the New Jersey Association of Counties say have choked clerks’ offices around the state.

But little in the bill advanced Friday addresses commercial concerns, and Sen. Paul Sarlo (D-Bergen), the chair of the Senate Budget Committee and the bill’s top sponsor in the upper chamber, on Thursday indicated attorney’s fees lay at the heart of the issue.

“I think you’re going to hear it’s about attorney’s fees and about a cottage industry of folks who are making a lot of money off the taxpayers of New Jersey. I’m not sure how we could ever resolve that,” Sarlo said. “We’ve done our best.”

While new exemptions would bar the release of residents’ addresses and other personal identifying information on documents like pet permits, the latest draft in some ways elevates commercial requestors over others.

The bill would allow commercial requestors — and no others — to pay a fee to receive requested records within seven days, instead of the 14-day response requirement the bill would create for commercial requests.

“We heard a lot of testimony from county and local folks about the volume of OPRA requests, and there are, in some towns, many commercial requests, but this bill and these amendments do nothing to deal with that,” said Dena Mottola Jaborska, executive director of New Jersey Citizen Action. “If anything, it actually encourages it more.”

Custodians seldom fill records requests without seeking an extension, and it’s unclear what would happen if a custodian sought an extension to a request for which a business had agreed to pay a special service fee meant to help a government meet the costs of producing records.

At times, supporters have said the bill would modernize the Open Public Records Act, which was signed into law in 2002, but such provisions are also a relative rarity.

A broadened exemption would bar the release of information related to electronic devices and networks — instead of just computers — and a new exemption would restrict the release of metadata.

Provisions in the bill allowing custodians to direct requestors to online record portals are entirely voluntary. The bill provides $4 million in funding to stand up such systems, or about $7,000 per municipality.

Transparency promises already broken

Lawmakers’ promises of transparency were already broken before Thursday’s hearing even began.

In April, Sarlo said amendments to the bill would be released a week before it went to committee. The Legislature shared a draft of the amendments with reporters who requested a copy on Monday, but that draft was not final and did not include new amendments made Thursday morning.

Numerous speakers accused the chairman of misrepresenting the depth of the Legislature’s engagement with the bill’s critics.

At the start of the hearing, Sarlo said amendments had been added at the request of groups like the American Civil Liberties Union of New Jersey, the League of Women Voters, and the Working Families Party, among others.

But representatives for the ACLU, the League of Women Voters, and the Working Families Party on Thursday said that, while they had a meeting with senior legislative staff, their concerns remained unaddressed and they did not play a significant role in shaping the bill.

“It’s all meaningless negotiation, so you can claim that you worked with us,” said Joe Johnson, policy counsel for the ACLU-NJ. “If I owned a house, I would have bet it all that you would have started this meeting by name-dropping us to try to add credibility to this terrible bill and terrible process, and I’d be much richer today for it.”