NJ Legislature passes 'reform' that will dismantle public access to government records

The New Jersey Legislature gutted the Open Public Records Act on Monday, rolling back decades of progress in providing access to records on the local, county and state levels, even as members of the public and the press raised objections and warned of government overreach.

The bill, which if signed by Gov. Phil Murphy will cut off access to a wide array of public documents and data, was passed by broad majorities in both the Senate and Assembly. The legislation was sold as needed reform after organizations like the League of Municipalities complained that providing access to records — records paid for by taxpayers — put an undue burden on municipal clerks, who are also paid by taxpayers.

Open government advocates said the bill masquerades as reform but is in reality a way to keep important information from the public.

It was sponsored in the Senate by Sens. Paul Sarlo, D-Bergen, and Anthony Bucco, R-Morris, and in the Assembly by Assemblymembers Joseph Danielsen, D-Somerset, and Victoria Flynn, R-Monmouth. While Danielsen and Flynn took the time to defend the bill on the chamber floor before the vote Monday, Sarlo did not and Bucco was not present.

They are all being viewed in stark contrast to former Sen. Loretta Weinberg, who became synonymous with open government as the champion of the Open Public Records Act.

In the state Senate

State Senate President Nick Scutari said after the Senate's voting session that the legislation was an effort to save taxpayers money.

While the bill was under discussion last week in the Senate budget committee, lawmakers said it was focused on limiting data brokering and commercial access. Provisions dealing with regulation of data brokers, however, were removed from the final version of the bill.

Scutari also said the Legislature — controlled by Democrats — has been exempt since the bill was introduced and that the legislation's sponsors are listening to the concerns of small-town New Jersey mayors.

“This isn’t about us. This is what I heard on my first day as Senate president at the League of Municipalities when I wasn’t even sworn in yet,” he said.

There were 21 votes in favor and 10 votes against. Nine state senators did not vote, including state Sens. James Holzapfel, Shirley Turner and Bucco who were not present.

One lawmaker noted after the session that not voting is the equivalent of a no but shows respect to the effort of the sponsors.

State Sen. Andrew Zwicker voted against the bill in committee both in March and last week. He said after the voting session, “From everything I understand, this will make it more difficult [to get records], and that is my concern.

“I think we made it better in the amendments, but it didn’t go far enough for me to vote for the bill,” Zwicker said.

In the Assembly

Although Danielsen refused to comment on the bill to reporters before the voting session, he did get up to defend it, saying there are “big problems with the current statute” and that the bill is needed.

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

After speaking for more than 10 minutes on the bill, Danielsen was asked by a colleague across the aisle, Assemblyman Brian Bergen, if he would answer any questions on the bill. Danielsen declined.

Bergen noted that the bill hinders transparency and creates the opportunity for the government to sue requesters in some instances.

Assembly members John Azzariti and Dawn Fantasia also spoke out against the bill.

Fantasia commended the sponsors for recognizing that there are problems with the law but spoke about her time in county government in Sussex County and the requests that she and her county government colleagues filed during the pandemic about the issues at the nursing home in Andover. She said four years later, they still have not received the documents they asked for. This bill does nothing to address the problems they faced.

The bill passed the lower chamber with 44 votes in favor, 25 against, one abstention and 10 members not voting.

Will government records 'be readily available?'

The bill cleared committee in both chambers on Thursday and Friday after hours of testimony in opposition from advocates.

The proposed law initially cleared committee in the upper chamber in March but was pulled from consideration in an Assembly committee that same week just minutes before it was set to start.

There were no such delays this month, though, and while there were votes against the bill in each committee — three in the state Senate and one in the Assembly — it ultimately moved forward.

The most recent version of the bill removes the presumption-of-access clause at the beginning of the OPRA statute, which notes that “government records shall be readily accessible,” and the Senate Majority Office said the section "will remain intact as part of the OPRA law.”

“That section is not being removed from the OPRA law, just from the bill," spokesperson Richard McGrath said. "It came out of the legislation because that section of the law is no longer being amended."

While advocates from groups like the American Civil Liberties Union, New Jersey Working Families and New Jersey Citizen Action have been outspokenly opposed to the measure since it was first introduced in March, not everyone thinks it’s a bad bill.

Representatives from organizations including the League of Municipalities, New Jersey School Boards Association and New Jersey Association of Counties have supported the legislation. Some spokesmen for those organizations — including the league's executive director, Michael Cerra — said they would have liked the legislation to go even further to restrict public access to government records and data.

Since the bill was first heard in committee in March, Republicans in both chambers have joined as sponsors — Bucco in the upper chamber and Flynn in the lower chamber.

Our view: Amended OPRA bill an absolute sham. Governor Murphy, veto this affront to democracy

What will the legislation do to gut OPRA?

The updated bill includes the renewed ability to make anonymous requests and the removal of exemptions for call and email logs and digital calendars.

It also implements stricter requirements on how to request things like texts and emails, including specific accounts, times, topics and titles.

There are modifications to the provision limiting access to metadata to allow for access only to the "portion that identifies authorship, identity of editor, and time of change."

Language restricting data brokers and commercial entities that resell information obtained through OPRA was removed.

The parts that remain mostly intact include one of the most controversial, known as the fee-shifting provision. This provision previously required public record custodians that had not, according to a judge, properly provided records to pay the requesters' attorney fees.

The bill initially changed that to say winners of OPRA lawsuits "may" be entitled to legal fees if the public agency is found to have knowingly violated the law or unreasonably denied access. In its amended form, the bill still eliminates the attorney fee requirement but does allow for judges to decide that fees are warranted if the denial was unreasonable, if the agency “acted in bad faith, or knowingly and willfully violated” the law.

The amendments also include language that would allow for a court to “issue a protective order limiting the number and scope of requests the requester may make” if they “sought records with the intent to substantially interrupt the performance of government function.”

The legislation was first enacted in 2002 and requires local, county and state government entities to provide the public with access to government records in New Jersey.

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

This article originally appeared on NorthJersey.com: NJ Legislature passes OPRA reform bill for public records access