New Jersey legislators eviscerated governmental transparency last week when both the House and the Senate voted to approve sweeping changes to the state’s Open Public Records Act (OPRA). Now it sits on the desk of Governor Phil Murphy for his signature or veto.
The bill, which restricts access to communications, records, data and other essential information, has drawn overt criticism from journalists, the ACLU and transparency advocates from across the state who say that the new laws will allow government agencies to safely retreat into the shadows without any accountability or oversight.
An earlier version of the bill was sent back to committee after public opposition reached a fever pitch back in March. But after just a few short weeks of conversation, a slightly retooled iteration of the legislation (S2930) was reintroduced and fasttracked through both houses within a matter of days.
Government, it seems, can move quite quickly when it wants to.
Governor Murphy, if you’re reading this: do not sign this package. The negative repercussions of this bill, of which there will be many, will exponentially outlast the remainder of your term in office and leave the residents of the state that you have governed for six years in the dark.
Among other provisions, this version of the bill would restrict access to emails and communications shared between government officials, make it difficult for lawyers to win legal fees for objecting to the denial of records and allow government agencies to sue people for submitting requests that “substantially impair” their operations (a widely subjective categorization, in our opinion).
The amendments also include language that would allow the court system to effectively ban some requesters — specifically, those who “harass a public agency” or “interrupt government function” — from requesting any type of government records in New Jersey. This is extraordinarily subjective, and would potentially allow a government entity to bar anyone they deem to be a resident of their municipality that they find difficult.
One of the issues raised by the New Jersey Press Association provides that a public agency, despite being in possession of the government record, shall not be “considered” in possession of a record that is created, maintained or received by another public agency. Candidly, we are at a loss to understand the public policy that supports this provision. Significantly, there are situations where the very purpose of a records request is to compare the documents held by different public agencies that are professed to be identical. If a public agency possesses a record, it is a government record and, unless otherwise exempt, is accessible regardless of whether another entity created, maintained or received the record. This amendment has the effect of thwarting transparency while advancing no sound public policy.
The bill also omits some essential language from OPRA’s opening paragraph, which, up until now, has required that “government records shall be readily accessible … and any limitations on the right of access … shall be construed in favor of the public’s right to access.”
These are dangerous precedents to set in a state that has certainly never been lauded for its transparency.
Earlier this year, we published an editorial in which we acknowledged that OPRA has never been perfect. We know that unscrupulous people — like YouTubers who request hundreds of hours of body-worn camera footage from local police departments for the sake of monetizing the content or data-mining corporations that use records requests to fish for private information — have been exploiting the law for decades. Proponents of the bill, including the New Jersey League of Municipalities, say that these types of requests are both timeconsuming and expensive — and they’re probably right.
We have our own list of grievances as well. For example, OPRA requests are supposed to be returned within a designated time frame, which is almost always ignored, and overly subjective redactions make it challenging for us to access the information that we need to do our jobs. There was certainly room for improvement under the previous legislation, and we would have welcomed legitimate reform.
But there were — and, potentially, still are, if Governor Murphy refuses to sign off on the amendments — other options available that would have allowed the state to weed out the bad actors without stripping New Jersey residents of their fundamental rights to access.
At the federal level, for example, requesters have to pay for documents obtained through the Freedom Of Information Act (FOIA) based on the amount of work that it takes to prepare a response and the number of hours that have to be expended to gather the necessary data. Implementing something similar at the state level would relieve some of the financial burden from government entities and force people to consider the urgency of their requests before submitting them.
We cannot stand behind this package in its current form, and we are asking Governor Murphy to carefully consider his options before signing off on something that would so drastically reduce access to vital government information in the state of New Jersey.
Governor Murphy, don’t let plunging the public into darkness be your legacy.
