NJ Legislature is once again taking aim at OPRA, seeking 'reforms' to transparency law

Advocates warn that new legislation geared toward overhauling the New Jersey's Open Public Records Act will do more to gut the current law and steer the state further away from transparency.

The bill, formally introduced on March 4, is sponsored by state Sen. Paul Sarlo, D-Bergen, and will be heard by the Senate Budget and Appropriations Committee — which Sarlo chairs — on Monday. The legislation would limit public access to certain kinds of government documents and related information.

The Open Public Records Act, commonly known as OPRA, was first enacted in 2002 and requires local, state and county government agencies to provide the public with access to government records in New Jersey.

'A disturbing track record'

Jesse Burns of the League of Women Voters said that “Trenton has developed a disturbing track record of proposing and passing anti-transparency legislation while trying to convince the public that it is in our best interest."

“Provisions in [the proposed legislation] limit the public's and the media's ability to hold our government accountable, and the legislation is bad for our democracy,” Burns said. “In what feels like a slap in the face to good-government advocates, the Senate, after drafting this legislation behind closed doors, is attempting to fast-track the bill during ‘Sunshine Week,’ a time when we are meant to celebrate the positive impact of open government and transparency on our democracy.”

Burns cited last year’s Elections Transparency Act, which effectively rolled back some of the strongest pay-to-play laws in the country, as another example of existing transparency laws being gutted.

Conversations among advocates started last year when a version of an OPRA reform package was introduced in the lower chamber by Assemblyman Joe Danielsen, said Joe Johnson of the American Civil Liberties Union of New Jersey.

Johnson said these groups are relatively well organized on the issue and that while they are still reading through the new bill, it contains many of the same things that were cause for concern last year.

“I don't think it is the type of thing where there's a few minor amendments we can make here that make it better or that we would ultimately be able to live with,” he said. “Across the board it seems to really be limiting transparency and access to these records. So for the ACLU of New Jersey, we're going to be opposing this bill as strong as possible to make sure that we are fighting for more transparency and not for less transparency.”

Johnson said transparency is needed by the public, and that members of the public have a right to information about decisions that local government bodies are making and that is “something that has long been a part of our democracy.”

He said that being able to trust in government isn't a “blind trust” and that residents trust in government because they know that information is available to make sure government is operating the way it says it is.

“It does very much seem like a one-sided bill, where it is just curtailing access all the way around with no trade-off,” Johnson said.

CJ Griffin, an attorney who has litigated hundreds of OPRA cases, including many for NorthJersey.com, called the bill “disappointing” and said that when reform was first discussed last year, it was presented as something that would “have a long deliberative process and involve all sides” but that “there's nothing in these bills that pro-transparency, good-government advocates want.”

The changes included in the bill are the sort that groups like the League of Municipalities have wanted for a long time, Griffin said, noting that there’s “not a single provision” that “actually makes things easier for the public.”

Griffin also said the things government officials complain about are “requests that are just quintessential government 101,” like property files that people request before buying a house.

Nicole Rodriguez, president of New Jersey Policy Perspective, said in a statement that the bill would “fundamentally change who has access to public information across the state, undermining the very principles of transparency and accountability in government.”

“It would hide more public information behind lock and key, while creating new obstacles for requesting documents that should still be available,” Rodriguez said. “When documents are created by public officials on public salaries with the public’s trust, there’s no good reason to restrict public access to that information, yet that’s exactly what this bill does.”

Not only would the bill make it harder to get records, but it could cost taxpayers money, Griffin said.

“Under the current law, if the custodian or another public official willfully violates the statute, meaning there's no basis to deny it, and they do, they're personally penalized. They have to pay a fine by themselves,” she said. “This new bill removes that, so if you have a willful violation penalty, the agency will now pay it … and then the taxpayers are just going to pay the fine.”

Griffin noted that the personal fine had been included in OPRA to make sure there was an incentive for compliance because someone has a personal stake.

“We're at a time when New Jersey's a national headline for corruption and nepotism and pay-to-play stories and all this sort of stuff, and what's the Legislature's response but more secrecy,” Griffin said. “That's what this bill is. It's just going to make it much harder … Everything is protracted and drawn out and impossible to get, and this just codifies that formal process.”

What would the new legislation do?

Under the new bill, access to email and call logs, dog license information, email addresses and even digital calendars would be exempt. Requests for email would need to include a “specific subject matter” and “discrete and limited time period” as well as a specific person, as opposed to a title or government department.

Requests that an agency thinks could lead to “harassment” can be denied, and an official OPRA request form would need to be used.

It would also change the policy regarding attorney’s fees in the event of a lawsuit and would create a task force to study police records, made up of law enforcement and government representatives.

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Not a new effort

Updating OPRA isn’t a new idea for Sarlo. He said last May that his office has been working on a "positive and transparent overhaul" of the law, calling his efforts a "transformational update."

"It's something that's clearly needed," he said at the time. "There are a lot of cottage industries that have been created that utilize our hardworking, understaffed small municipal offices for research to help them with their legal cases or to help them with their projects."

Both Assembly Speaker Craig Coughlin and Senate President Nick Scutari said last fall that OPRA reform was being considered during the lame-duck legislative session that ran from November to early January.

"OPRA has been in place for 20 years. Everything evolves," Coughlin said. "Technology evolves, the nature of the request evolves, and so we’re working in our house to look at those, and the timing will be when it's right."

Scutari echoed that sentiment and said much of the information is available online, going on to say the "way in which OPRA has been in some cases weaponized and just made cottage industries has cost taxpayers."

Katie Sobko covers the New Jersey Statehouse. Email: sobko@northjersey.com

This article originally appeared on NorthJersey.com: NJ OPRA: Legislature again seeks to reform transparenct law