N.J. legislators targeting Open Public Records Act for revisions during lame-duck session

Democratic State Sen. Paul Sarlo is leading an effort to substantially revise New Jersey’s Open Public Records Act, with a plan to push through changes during the two-month “lame duck” session after the November election.

While bills have not yet been drafted, according to Christopher Eilert, Sarlo’s top aide, the focus of the legislative changes likely will be on reining in the number of OPRA requests that affect more than 1,100 state, county and local agencies, especially requests made by private parties and commercial users, and shifting appeals of OPRA denials from the courts to an expanded Government Records Council. Revisions also likely will affect the Open Public Meetings Act, too, providing elected board subcommittees more latitude to meet behind closed doors.

“A lot of people are talking about addressing these issues,” Eilert said. “Right after election day, things will come together pretty quickly.”

Good government advocates are fearful that the “revisions” will decimate OPRA/OPMA and undermine the public’s right to be fully informed about their government and elected officials. A coalition of more than 30 state and local groups, including the ACLU, the Working Families Party, and the League of Women Voters, held a meeting last week to discuss strategies to prevent changes that would delay or block public access to government records.

“They (lawmakers) seem to be hell-bent on gutting OPRA,” said John Paff, chairman of the Open Government Advocacy Project of the Libertarian Party. “The question is, is this truly to make OPRA better or is it a more sinister intention?”

It’s been more than twenty years since the New Jersey Legislature embraced greater transparency by passing OPRA, the state equivalent of the federal Freedom of Information Act, as a companion to the Open Public Meetings Act that was already on the books. Some of the most ardent champions of government transparency, including former state Sen. Loretta Weinberg, acknowledge that the laws — which predate digital records and text messaging — are in need of changes, but to modernize them and promote greater government transparency rather than restricting it.

Advocates, not surprisingly, would suggest a more open approach to any revisions, including public hearings where all stakeholders have a chance to be heard. They see no small irony in lawmakers drafting last-minute legislation and then enacting it a few weeks after its introduction.

“It’s mind-boggling,” Weinberg said. “The mindset should be that everything we do as elected officials should be done in public, with very few exclusions for very specific reasons.”

Sarlo’s staff has discussed the legislation privately with representatives from the New Jersey League of Municipalities, the New Jersey Press Association, and other stakeholders. But assumptions about any OPRA revisions are premature, Eilert said, because the legislation hasn’t yet been drafted and public hearings will be held once the bills are taken up in committee.

Eilert added that Sarlo had no involvement in, and has some serious concerns with, legislation sponsored by Asm. Joseph Danielsen, a Middlesex Democrat. The four-bill package, introduced on June 15, was referred to the Oversight, Reform and Federal Relations Committee.

Danielsen has since disowned the bills dropped in his name.

“These are not the bills we want in their current form,” his legislative aide Wayne Dibofsky said. “There’s a lot more work to do. We want public input and (to be) fully transparent. We would really rather have committee hearings and formulate a more good government type of legislation.”

Despite the promises of public hearings and full transparency, advocates remain skeptical about the legislative effort to protect the public interest.

“Gutting OPRA makes it harder for reporters to get truthful information to the public, which is alarming given the state of disinformation today,” said C.J. Griffin, a lawyer at Pashman Stein and one of the leading OPRA lawyers in the state. “The very basic foundation to democracy is freedom of information—letting people see their government in full view. …The Legislature should be expanding transparency in this state, not taking it away.”

Current law requires government records to be readily accessible to the public. The law has specific exemptions for privacy and proprietary information; the Legislature has exempted itself; and the governor’s office has often invoked “executive privilege” to deny requests. The law also requires a response to a request within seven business days and allows appeals of a denial of records through the court system.

Most of the changes being discussed would restrict access, impose steep fees, deter legal challenges, and delay responses. 

Among key issues under consideration:

• Fees awarded to lawyers who prevail in OPRA denials on behalf of public requestors. Making those awards optional could have a chilling effect on legal challenges, many of which are taken on by lawyers on a contingency basis. Legal fees can also be an incentive for public agencies to comply with the law.
• Greater authority for the Government Records Council, which has a two-year or more backlog of cases. Danielsen’s bills would expand the number of council members who are appointed by elected leaders and provide a meager $250,000 a year in additional funding to deal with requests.
• Limiting access to records by requestors who are deemed a nuisance. One of Danielsen’s bills would allow the Superior Court to issue a protective order limiting the number and scope of OPRA requests from a member of the public at the request of an agency if the court determines the requests substantially disrupt the operations of the public agency or its records custodian, a very subjective standard.
• Limiting access to records for “commercial purposes” to two requests per month per custodian, although journalists, academics and government organizations would be exempted from a commercial designation. The New Jersey Supreme Court ruled in 2021 that business owners have the same right as other residents to request government records.
• Exempting metadata and records from consultants to public agencies, shielding documents related to public contracts from disclosure. Danielsen’s legislation also would require redacting telephone numbers, email addresses, and social media addresses from all records.
• Extending the time for records custodians to respond to requests from seven business days to 20 days.
• Mandate that public records requestors use the official government form of the public agency to file a request rather than sending an email, contrary to a 2009 appellate court ruling that OPRA requestors do not have to use the official agency form.
• Allowing custodians to require requestors to access records on a terminal available in a municipality’s office rather than emailing the records to the requestor.

Walter Luers, a lawyer with Cohn Lifland and a board member of the New Jersey Foundation for Open Government, said most of the revisions being discussed would do considerable harm by hindering the public’s ability to hold elected and appointed officials accountable.

“Aspects of the law can always be updated,” Luers said. “What’s needed is maybe tweaking or fine-tuning, not wholesale change.”

Efforts to revise OPRA/OPMA have been near constant in recent years, and advocates say they recognize that change can be positive and beneficial, including even more transparency and openness if lawmakers were so inclined.

Before retiring after the last legislative session, Weinberg, then the Senate Majority Leader, made it her mission to do just that — modernize the OPRA/OPMA statutes, including using digital technology to make the records more accessible to the public. The bills she introduced went through extensive public hearings but never reached the Senate floor for a vote.

It frustrates her now to hear that Sarlo — who in addition to serving in the Legislature is also the elected mayor of Wood-Ridge — is planning a new package of bills and new hearings.

“We spent three years trying to update OPRA,” Weinberg said. “We should get all the stakeholders together? I sat down at table after table after table with all of them. You name it,  they were at the table. Meeting after meeting after meeting. The League of Municipalities would always move the goalposts. They were unreliable partners.”

The mindset of public officials limiting public access to public information, Weinberg says, is like hospitals saying they would be well-oiled machines if only there were no patients to complain about the food, or dirty up the floor, or press the call buttons.

“There is a whole move to close everything down,” Weinberg said, “but as elected officials, we have the public to answer to.”