Planned overhaul of N.J.’s public records law would be a disaster

It’s hard to choose the worst bits of the new bill that would gut New Jersey’s public records access law.

This is the second time in the last year that lawmakers have proposed revising the Open Public Records Act, but since the new bill is scheduled for hearings in both chambers of the Legislature on Monday — just one week after it was introduced — it’s clear legislative leaders see this as a priority.

This is unfortunate because the bill is a disaster.

Lawmakers say one reason they want to revamp the law we call OPRA is to address commercial requestors using it to further their interests, like real estate companies obtaining tax records. This is absolute nonsense. The bill, sponsored by Sen. Paul Sarlo, doesn’t stop at adding hurdles for commercial requestors (who, I’ll note, are also citizens who pay the taxes used to create the records they’re seeking). It would give the state and local governments more leeway to deny more requests from the public, which means less transparency in a state that needs more.

Just in the past four years, New Jerseyans have seen: an “extraordinarily high” number of deaths at two state-run nursing homes in the early months of the pandemic that federal investigators say resulted from substandard care that persisted even after the initial emergency abated; a murder-for-hire plot led by a political operative tied to numerous New Jersey politicos; a mayor forced to admit he used a common racial epithet to describe Black people; and, most recently, a U.S. senator indicted on corruption charges, for the second time.

This would be a great time to expand the public’s access to records, not put up insurmountable roadblocks between citizens and the documents we pay to create and maintain. That’s what the bill would do, in these key ways:

Expanding the definition of privacy

OPRA now requires public agencies to safeguard a citizen’s personal information when releasing or redacting documents that would violate their reasonable expectation of privacy. The bill adds “or when the public agency has reason to believe that disclosure of such personal information may result in harassment, unwanted solicitation, identity theft, or opportunities for other criminal acts.”

That’s a loophole as wide as the Holland Tunnel, one that would give every public official a chance to argue that anything they write in an email could lead to harassment.

Restricting access to emails

Speaking of emails, the bill would make it harder to find out what kinds of emails our public officials are trading by requiring that requestors provide specific individuals or accounts to be searched, a “discrete and limited” time period — can’t wait for that one to be interpreted — and specific subject matter. Basically, you have to already have the emails in your possession to provide the information you’ll need to get them. The bill would also bar releasing email logs. So, the chief way that public officials communicate in 2024 would be almost entirely withheld from the public’s view.

Redefining the word ‘possess’

If a public agency has a document created by another agency — say, when a county prosecutor’s office has a copy of a local police report — it can deny your request for it under the bill, which says an agency “shall not be considered in possession of a public record” created by another agency.

Barring metadata

Another thing the bill would ban: the release of metadata. That’s the kind of info in an electronic file that provides info on when the file was created and by whom. Reporter Dustin Racioppi obtained metadata for a 2019 story that revealed a state agency made up job titles for people it had already hired — all in an attempt to shield that the agency’s chief hired a bunch of her friends and allies who were unqualified for their new jobs.

There’s nothing difficult or time-consuming about sharing metadata — public entities just have to share the file. But they don’t want to do that if that info has the potential to expose their malfeasance.

Shielding public entities from legal costs

A thing public agencies absolutely hate about OPRA is that if they deny someone’s request and then a judge decides the request should have been fulfilled, the agency is on the hook for the winner’s legal costs. And rightly so: An agency that withholds a public document is forcing a legal battle, so if they lose, they should foot the bill. But under Sarlo’s measure, requestors who win OPRA lawsuits “may” be entitled to legal fees if the public agency is found to have knowingly violated the law or unreasonably denied access.

Jersey City once took a business owner all the way up to the New Jersey Supreme Court in an OPRA lawsuit, but it lost at every level. The city has a team of lawyers at its disposal who can fight in court, but the business owner had to hire an attorney for a nearly three-year legal fight to get records our Supreme Court said were public documents. Yes, Jersey City taxpayers were then forced to pay for their own costs and the costs of the business owner — but they wouldn’t have if their leaders had simply produced the public documents when asked.

There are a host of other bad things about this bill. It also provides an avenue for public agencies to sue people requesting too many documents, like when Irvington sued an 82-year-old woman in 2022 for having the temerity to question town leaders’ financial management (turns out she was right). But my blood pressure is rising, so I can’t focus on everything at once. And frankly, the lack of outrage from Sarlo’s colleagues about this suggests there’s nothing stopping this bill from making it to Gov. Phil Murphy’s desk for his signature. This is getting done, I’m sure of it.

Much of the outrage about the bill has come from reporters, because we use OPRA a lot. But everyday citizens use it, too, especially now that the media landscape has changed so much that many in New Jersey go uncovered, leaving it to their residents to demand public records in an effort to keep their leaders accountable. Sarlo’s bill is not just an attack on transparency; it’s an attack on the very citizens he represents.