Democratic lawmaker seeks public records law overhaul

A Democratic lawmaker is proposing an overhaul of the state’s public records laws that would restrict access to some records and force denials to go through a notoriously slow-moving agency.

The introduction of the legislation comes after top Democratic and Republican lawmakers have said they are seeking an overhaul of the state’s laws around access to public records.

The proposals, introduced Thursday, would limit requests from commercial businesses, change how records denials are challenged, exempt specific records from being disclosed and, in some instances, bar denials from being challenged, among other changes.

The wide-ranging proposals include some requests from local government groups — who have long sought changes to public records laws and say they will ultimately save taxpayer dollars. But it has also drawn criticism from public records advocates, who say the proposals could “gut” the public’s access to transparency in government.

New Jersey's public records law has been widely criticized by advocates and faced legal challenges from the news media. Public access pales in comparison to other states, such as Florida. At a time when many news organizations face budgetary constraints, some records custodians deny requests without legal challenge or seek extensions that outlive the news value of requests.

The records law notably holds two different standards: The legislators who wrote the law are largely exempt from disclosure while the Executive Branch is subject to much greater disclosure. Nothing in the bills overhauling OPRA focus on opening state lawmakers to the same level of scrutiny as the Executive Branch.

In an interview, Assemblymember Joe Danielsen (D-Somerset), who is sponsoring the legislation, did not say directly whether the proposals were done in consultation with legislative Democratic leadership (Assembly Speaker Craig Coughlin said last November “it's time to have a happy birthday party and tell OPRA to grow up.”).

“There’s probably 50 authors to what has been dropped so far,” he said. ”I’m sure there's going to be a lot of amendments. Everyone’s got their fingerprints on this.”

Public records advocates have been deeply critical of the proposal, which was introduced Thursday. Former Senate Majority Leader Loretta Weinberg — who was a strong advocate for public records during her time in the legislature — called a proposal "outrageous" that would prohibit records denials from being challenged if a custodian deemed it would require government employees to do "research."

“I am a great believer in transparency,” she said in an interview. “To see any kind of legislation move to close that down or undermine it is to me a huge step backwards. Not only for the press but for all other people who believe in open government. I think we should help expose moves like this before they move on their own steam.”

Local government groups have long sought changes to the state’s public records laws. In a text message, John Donnadio, executive director of the New Jersey Association of Counties, said his group “strongly support[s] limiting commercial requests and capping attorney fees” — both items that are included in Danielsen’s proposal.

One of Danielsen’s measures, A5614, makes awarding attorneys fees for prevailing challenges optional — it is currently required if a plaintiff successfully challenges a records denial — and caps how much a plaintiff’s attorney is paid from a government who broke the law to be no more than what the government pays its attorneys. The bill also proposes requiring a records denial to head to the Government Records Council — a body that the state Comptroller has said takes an average of 21 months to adjudicate requests — instead of the common route of Superior Court. Decisions from the GRC can be appealed to a state Appellate court.

In a statement, CJ Griffin — one of the state’s most high profile public records lawyers, who represents news organizations — said the proposals “really gut OPRA.” Capping attorneys fees would disincentivize attorneys from engaging in records challenges, Griffin said.

“Think of all the landmark cases that made their way to the Supreme Court and have expanded transparency in this State — those won't happen anymore because the most skilled attorneys won't be able to take cases on a contingency basis,” Griffin said in a statement.

“Instead, the GRC will be hearing challenges by people acting pro se, fighting against a government agency with unlimited resources and an attorney who knows the law. That's the opposite of what the original authors of OPRA intended and the after effects will be that the state is far less transparent and more corrupt. The Legislature's recent hostility toward transparency has become increasingly alarming.”

Danielsen said that limiting attorneys fees was in the best interest of taxpayers.

While the GRC could be “slow,” Danielsen said, it could be “fixed” with extra funding and adding more members to its board. The proposal would add $250,000 to the GRC to process complaints and expands the council’s public members from three to seven. The current budget set aside under $500,000 for the council.

“I'm all about a speedy review, speedy review and speedy decisions,” Danielsen said. “What we have right now is that we don't have any fast system.”

Other proposals from Danielsen include:

— A5613, which would make requesters inform agencies if they intend to use the records for commercial purposes, such as selling or otherwise profiting off the records. Commercial requesters would be limited to two requests per month per custodian; penalties for not disclosing a record is used for commercial use includes financial penalties and being barred from requesting records for a year. News media, educational and government groups would be exempt from being considered a “commercial” requester.

— A5615 would allow courts to limit people from making records requests if it determines those requests “over a period of time have substantially disrupted the operations of the public agency, or the custodian, or both.” An agency must show it had complied with the law and made a good faith effort to resolve any issues related to the request. If passed, a court could limit — or in some circumstances eliminate — an agency’s duty to respond to that requester in the future, but it could not exceed one year. There is no definition for what would be deemed a substantial disruption. 

— And A5616 would make a number of changes limiting public access to records, such as exempting metadata; redacting telephone numbers and email addresses and social media accounts. Records related to how an individual gets government contracts or permits would be exempt from public disclosure.

Danielsen did not provide a timeline for when he expects the legislation to advance but said that changes to records laws “should have been done 15 years ago.”

“Democrats, Republicans, anyone who is in elected office or runs an agency — everyone understands our [public records] law was poorly written. At a minimum it's outdated and antiquated. It has created boutique markets for people who utilize it for abuse, harassment and politics," he said.