Lawmakers prepare final votes for bill overhauling public records law
Local officials have backed some of the proposed changes for years, saying the law has been hijacked by commercial operators. (Dana DiFilippo | New Jersey Monitor)
Legislators in both chambers will weigh changes to the Open Public Records Act on Monday in what could be the act’s most substantial overhaul since it came into being 22 years ago.
Local officials have backed some of the proposed changes for years, saying the law has been hijacked by commercial operators who have inundated records custodians with requests and driven up government costs. But many of the bill’s provisions have alarmed activists, journalists, and transparency advocates who say the changes would sharply limit the kinds of public documents citizens can access and do nothing to stem the flood of commercial requests.
The bill’s support is bipartisan — Sen. Paul Sarlo, the Democratic budget chair, and Sen. Tony Bucco, the chamber’s Republican leader, are among its chief sponsors — as is its opposition.
“We are a government of the people, by the people, for the people. This legislation upends that,” Assemblywoman Nancy Munoz (R-Union) said in a statement.
Fee-shifting
Among critics’ chief concerns about the legislation is that it would end the mandatory awarding of attorney’s fees to requestors who successfully challenge a denial in court.
Under its text, such awards would only be required if a judge finds the custodian acted in bad faith, unreasonably denied access, or knowingly violated the law.
The bill’s supporters say mandating the award of attorney’s fees costs government entities too much. But critics worry that weakened fee-shifting — and separate language that requires requestors to prove special fees custodians can charge for complex requests are unreasonable — would allow governments to improperly shield records while leaving requestors without legal representation to challenge such denials.
Fee-shifting is the Open Public Records Act’s primary enforcement mechanism. Attorneys who take on public records cases often do so for free and rely on attorney’s fees, which are paid only if the requestor prevails in court.
The Government Records Council also adjudicates records disputes, but the agency is famously slow. A 2022 state comptroller report found it took the agency 21 months on average to resolve a case.
The bill would grant the agency $6 million in funding, give it discretion to award attorney’s fees, and require it to complete records disputes within 90 days beginning 18 months after the bill is signed into law.
The legislation would alter the agency’s makeup, expanding its five-member board to nine members and removing prohibitions that bar public-sector workers from sitting on the board as one of its eight public members, which the governor would directly appoint. Members would also be paid a salary.
It calls for the agency to create a uniform records request form that municipalities must adopt, which would allow custodians to deny outright requests that do not include a requestor’s name, address, email, and phone number.
Such denials would be barred against anonymous requests, though that provision is likely moot. The bill would remove anonymous requestors’ ability to challenge a denial in court or before the agency, so custodians would face no penalties for bad-faith denials of anonymous requests.
New language would allow governments to add payroll costs to special service fees they can charge requestors who ask for electronic copies of physical documents. Other changes would allow custodians to ask for deposits before taking any steps to fill a records request.
Exemptions and commercial requests
The legislation would create new exemptions barring the release of information related to an expanded range of electronic devices, public security systems, and metadata.
Others would require custodians to redact a range of personal information — including names, addresses, telephone numbers, personal emails, and bank and credit card information — from documents ranging from pet permits to Motor Vehicle Commission records to public safety emergency response plans and government notification systems.
Yet other exemptions would limit the release of manuals, medical information guarded by federal privacy laws, and photos or video footage showing genitals, breasts, and other intimate parts.
The latter provision hails from a bill introduced by Bucco (R-Morris) and is meant to stop the sharing of body camera footage featuring young women on social media.
It’s not sure whether the exemption and separate language barring requestors from sharing such material would stop such posts, as terms of service for most popular social media platforms already disallow nudity.
Exemptions that would have barred the release of email, phone, and text message logs, public officials’ calendars, and certain information related to contract negotiations were removed by amendments.
The bill would create a separate track for commercial OPRA requests, allowing custodians 14 days to fill such requests before seeking an extension — instead of the seven-day period provided to all requestors under current law.
Other language would allow commercial requestors to receive documents within seven days if they pay a special service fee equal to twice the cost of producing records. The fee is meant to help governments meet the costs of producing records.
It’s not clear what would happen if a custodian sought to extend response times for such requests. Custodians seldom fill OPRA requests without seeking at least one seven-day extension.
Requests filed by news media, political candidates, labor unions, governments, and educational organizations are not considered commercial requests under the bill, and requests from nonprofits are only considered commercial if the nonprofit earns a fee from sharing them with a third party.
New custodian rules
The bill would allow custodians to deny requests for documents in the agency’s possession if such documents were created, maintained, or received — as in the case of applications and the like — by another agency. This can happen in some criminal investigations when a county prosecutor has municipal police records in its possession.
It would allow governments to sue records requestors if they believe they filed requests to stunt government operations and allow judges to issue orders limiting individuals’ ability to file requests under the law.
It would codify non-binding precedent from the Government Records Council that requires requestors to provide names, a specific time period, and discrete subject matter when requesting officials’ emails or text messages. New Jersey courts have reversed denials on less specific requests.
The legislation would also require each submission of a records request go to only one agency. The bill does not define submission, so the scope of the provision is unclear. It would allow custodians to automatically deny requests submitted while an identical or substantially similar request is pending. Critics have said this provision could halt some types of investigations that involve requesting identical documents from multiple agencies.
The bill would allow — but not require — custodians to post records in an online portal to which they can direct requestors instead of providing records. The bill would provide $4 million in grants from the Department of Community Affairs to fund such systems, or about $7,000 per municipality.
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