Controversial NJ bill to overhaul public records law heads to governor

New Jersey's Legislature on Monday passed an overhaul of the state's public records law over the objections of civil rights organizations, academic researchers, civic groups, the press and others.

It now heads to the desk of Democratic Gov. Phil Murphy, whose limited public comments on the bill have been noncommittal. The governor's signature would mean the first major changes to New Jersey's Open Public Records Act in two decades, and critics say it would "gut" access to government records.

Critics of the legislation in the audience chanted “shame” as the Senate, back from taking a brief pause during an otherwise-uneventful voting session, quickly passed the bill with no debate. Some people in the audience jeered during the debate in the Assembly. The bill, NJ S2930 (24R), passed the Senate 21-10 — the minimum number of votes needed for passage — and the Assembly 42-28 with one abstention.

“We have talked to advocates, we have heard criticisms. There have been many, many amendments made to try to satisfy those,” Senate President Nick Scutari told reporters after the vote. “But some people will never be satisfied regardless of how you're going to reach out to them.”

Before the vote, the cameras that normally broadcast the Senate’s proceedings did not turn back on in time after the Senate’s pause to catch the vote, leaving the public outside of the Senate chambers with no way to observe the vote.

The Assembly was a different story, with lawmakers holding a heated debate on the floor. The bill’s top sponsor in that house, Joe Danielsen, railed against “abusers” he said sought to catch records custodians with technical errors to be able to sue them and then offer to settle for cash.

“This is a good bill that continues to protect transparency, continues to protect citizens rights and continues to protect the taxpayers' resources and money,” said Danielsen, a Democrat.

One of his former colleagues in the Legislature strongly disagreed.

"Today, the Democratic-led State Legislature, a body I served for more than two decades, collaborated with Republicans to fundamentally gut our Open Public Records Act," former Senate Majority Leader Loretta Weinberg, who tried to broaden access to public records, said in a statement.

"Leadership reached across the aisle to pass this anti-democratic bill because they didn't have enough democratic votes in their caucus," she added. "Secrecy and evading accountability, I guess, has turned bipartisan. I could not be more disappointed in the New Jersey State Legislature."

Supporters of the measure, mainly county and municipal government lobbying organizations, argue the 22-year-old statute needs to be modernized to catch up with technological advancements and deal with records requests from businesses. “This is about saving taxpayer dollars. This is about modernizing something that occurred over 20 years ago,” Scutari said.

But the amendments to OPRA remove a major incentive for local governments to comply with records requests: Mandatory fee shifting, in which those governments have to cover the “reasonable” legal costs of anyone who successfully challenges a records request they denied. Under the new bill, judges would have the discretion over whether to award plaintiffs legal fees in records requests cases, unless they determine the denial was made in “bad faith,” “unreasonably” or the government agency “knowingly or willfully” violated the law.

Advocates say that beyond just removing a mandatory penalty against governments that refuse legitimate requests, the change would make it much harder for a lawyer to take on precedential cases in which it’s not yet clear whether the record being sought should be publicly available. This, along with other changes to the bill, would “gut” access to public records, they argue.

“My office has received hundreds of emails and phone calls from constituents, 100 percent opposed to the legislation, to the point that the staff couldn’t handle the volume of calls and let them go to voicemail,” said state Sen. Andrew Zwicker, a Democrat who voted against the bill.

The vote on the bill did not break down cleanly along party lines, though there was more opposition from Republicans than Democrats.

Assemblymember Brian Bergen, a Republican, asked Danielsen if he’d take some questions on the floor. Danielsen refused. Bergen alleged that members who voted yes on the bill did so because they were scared of retribution or in exchange for advancing their own legislation.

“Every yes vote that you’re going to get today is either threatened to be that way or bought to be that way, and it’s disgusting, Mr. Speaker,” Bergen said, later adding that “If you vote for this bill today… you are the exact person that people don’t trust.”

The bill would appropriate $10 million, part of which would go to government agencies for technological upgrades to post more information online.

Backers of the bill initially framed it as a way to cut down on commercial requests. But an earlier portion of the bill that would bar data brokers from requesting government documents was entirely removed in the latest version.

Other controversial changes to the law include:

— Shifting the burden to justify charging special fees on OPRA requests that are allegedly time-consuming to vet and fill from governments agencies to the requesters themselves.

— Allowing government agencies to get protective orders from courts to limit the amount of requests a person can make if they show there’s an an “intent to substantially impair” government operations.

— Requiring requesters to be more specific when searching for emails and other communications from government officials.

— Expanding the initial deadline to respond to commercial OPRA requests from 7 to 14 days, though it would allow commercial requesters to pay extra fees to have their requests expedited to 7 days. (In practice, the current seven-day deadline for all requesters is often extended, sometimes by months).

— Barring access to files’ metadata, except the part “that identifies authorship, identity of editor, and time of change.”

— Barring those who have received photos or video footage through a public records request from disseminating "any indecent or graphic images of the subject’s intimate part” without their consent. That language is similar to a prior bill proposed by Senate Minority Leader Anthony Bucco in response to a YouTuber who has posted numerous videos of young women’s traffic stops. Bucco has since signed on as a prime sponsor of this legislation.

— Expanding the Government Records Council, which hears denial appeals, and fund it with $6 million. The number of public members would increase from three to eight. The public members, nominated by the governor and at the recommendation of legislative leaders, would earn a salary and would no longer be barred from holding public employment.

In a radio interview last week, Murphy did not hint at whether he would sign the legislation, saying he sees the need to modernize the law but called transparency “sacrosanct.”

“There are good reasons to update it but I don’t want to throw the proverbial baby out with the bathwater, Murphy said.

CLARIFICATION: This report has been updated to reflect the updated vote count in the Assembly. The initial vote count shown on the Assembly board list changed after three lawmakers switched their votes after the fact.