Hearing planned for amended bill that would restrict access to public records

New Jersey lawmakers plan to consider on Thursday an amended version of a bill that would add restrictions to the state’s Open Public Records Act, with the changes meant to appease critics — who remain very much unappeased.

Transparency advocates and community activists testified against the bill for hours at two March hearings held just days after the bill was introduced. Lawmakers yanked it from a scheduled vote amid continuing discontent a few days later to make amendments. A draft of those amendments circulated this week, renewing outcry from critics who plan to protest what they call the “corruption-codifying OPRA secrecy bill” at the Senate’s budget and appropriations committee meeting Thursday, where it’ll be heard.

“Even after an outpouring of public opposition to S2930 — a bill that will undermine the public’s ability to hold government officials accountable based on the language that has been reported and shared thus far — New Jersey legislators and legislative leadership are continuing to fast-track their attempts to decimate the Open Public Records Act,” said Sarah Fajardo, policy director of the American Civil Liberties Union of New Jersey. “The ACLU-NJ believes that New Jersey must strengthen and expand access to public records, not restrict it.”

The ACLU-NJ, League of Women Voters of New Jersey, and other groups mounted a petition drive and urged residents to call and write their legislators to oppose the bill, which the league called “an attack on the public’s right to PUBLIC records.”

The bill’s sponsors — Sens. Paul Sarlo (D-Bergen) and Anthony Bucco (R-Morris) and Assembly members Joe Danielsen (D-Somerset), Vicky Flynn (R-Monmouth), and Reginald Atkins (D-Union) — say OPRA needs more restrictions to protect against privacy invasions and commercial abuse.

The amendments would tweak one of the more controversial provisions of the original bill — fee-shifting.

The law now says public entities “shall” pick up the bill for court battles over denied records that they lose, which supporters say ensures that court costs won’t dissuade journalists and citizen watchdogs from fighting for records they believe were wrongly denied.

Under the bill, “shall” would become “may,” meaning fee-shifting becomes discretionary. Critics warn that means the public will be less likely to challenge records denials if they have to shoulder legal costs themselves, so records won’t get disclosed and government will get less transparent.

One amendment tweaks the “may” back to “shall” — only if the public agency is determined to have acted in bad faith. But it’s unclear what “acted in bad faith” means and who determines that.

Other amendments would:

• Allow records custodians to deny requests that don’t include an address or other identifying information. OPRA now allows people to request records anonymously without submitting an address, name, or other identifying details.
• Tweak language that allows agencies to deny requests by repeat records requesters. The original bill characterized such requestors as those who “harass” agencies with requests; the amendment changes “harass” to requestors with “intent to substantially impair.”
• Allow judges to bar people from filing records requests anywhere in the state if the judge finds that person used OPRA to impair the functions of one agency.
• Permit commercial requestors to get records within seven days if they pay a special service fee up to twice the agency’s cost of producing the records.

Nikita Biryukov contributed.