N.J. lawmakers appear to be hitting pause on rewriting Open Public Records Act; bill targeting ‘commercial requestors’ still possible in lame-duck session

New Jersey lawmakers appear to be stepping back from an effort to substantially rewrite the Open Public Records Act during the lame-duck legislative session.

“We are in no hurry. There’s no timetable to get it done,” Sen. Paul Sarlo (D-Bergen) told the Jersey Vindicator. “We are talking about it and we will keep talking about it, but the calendar isn’t filled yet, and we don’t have a schedule.”

Asked at the Statehouse last week if that meant there would be no action on the state’s Open Public Records Act before the current Legislature adjourns in three weeks, Sarlo demurred.

“Does it have to get done in lame duck? Eh,” he said, shrugging his shoulders.

Sarlo had been leading the charge to rewrite the Open Public Records Act and its companion statutes, the Open Public Meetings Act, largely at the behest of the League of Municipalities, which represents local officials across the state. Last month, Sarlo’s top aide, Chris Eilert, said that revising the Open Public Records Act — which open government advocates see as “gutting” the law — would be at the top of the Senate’s agenda in the lame-duck session, but that any action would only be taken after public hearings were held. 

At the League of Municipalities convention in Atlantic City last month, Democratic and Republican leaders agreed that they wanted to change the law. They said more restrictions would make government more “efficient” and would result in lower property taxes. One legislator said the number of requests from citizens was “minuscule” and claimed most public records requests are from data miners. 

The Assembly may be taking action during the lame-duck session on a specific point in the law that deals with “commercial” requesters — those who seek records for the benefit of their private business, according to two legislative sources who spoke on the condition that their names not be used. The change is a key revision sought by the League of Municipalities and opposed by business interests, especially small businesses.

A wholesale rewrite of the Open Public Records Act during the lame-duck session of the Legislature seems less and less likely, though. 

Just four legislative meeting days remain on the calendar before the new term begins Jan. 9,  and Sarlo has promised to hold extensive public hearings on any legislation introduced. Lawmakers would also have to hold committee hearings in both the Assembly and the Senate before a bill could be enacted. 

Past attempts to revise the Open Public Records Act, enacted in 2002 to combat corruption and encourage transparency by elected officials, have been fraught for politicians concerned about the public’s perception of the changes. While some elected officials would like to substantially change or gut the Open Public Records Act, advocates for open government have sought reforms that strengthen transparency and incorporate technologies like text messaging. Those efforts have been stymied by associations representing local officials. 

This fall, reports of a massive overhaul drew criticism from good government advocates, the legal community, and journalists. More than 40 groups signed a petition calling on elected officials to press pause on legislation, including the  NJ Working Families Party, American Civil Liberties Union, League of Women Voters, New Jersey Foundation for Open Government, and Communication Workers of America NJ.

A prominent elected official also added his voice.

Jersey City Mayor Steven Fulop, a Democrat who has announced he will run for governor in 2025, spoke out on the social media site X against the effort.

“As the mayor of the municipality that has more OPRA requests than any other municipality in NJ. I’ll go on the record that I don’t think there is ANY need to reform OPRA during the lame-duck session. It’s a mistake to entertain,” Fulop wrote.

Jersey City received more than 4,400 records requests in the two previous years and may exceed 5,000 this year.

“OPRA is not perfect but there are so many bigger problems in NJ that deserve the focus,” Fulop added. “The optics of ramming it through during lame duck are just bad.”

Gov. Philip Murphy, a Democrat in his second term, has not taken a public position on revising OPRA, and it’s unclear if he would sign legislation that reaches his desk.

The League of Municipalities argues that the Open Public Records Act is a boon for businesses that use public records to generate sales leads for household services or mailing lists for mortgage refinance offers. They want to be able to charge businesses a premium for time-intensive searches rather than having taxpayers fund a clerk’s time for such requests.

Lawyers who are experts on the Open Public Records Act have expressed concerns about any legislation, including changes to rules governing commercial requests, being pushed through with only four legislative meeting days left. 

Attorney Walter Luers said changes could have unintended consequences. 

“Regarding commercial requests, the concern will always be that a solution intended for one narrow type of request will be applied broadly to many or all requestors, unfairly,” Luers said.

Attorney CJ Griffin said lawyers who need to access public records, real estate agents, private investigators who use public records as part of their work, expert witnesses who use public records for their reports, social justice organizations, bloggers who are not members of the news media, title companies, and people who are in the construction industry who access property records should be deeply concerned about any changes related to commercial records. 

Griffin said addressing issues with commercial requests through legislation needs to be done in a thoughtful way that doesn’t just create more work for a clerk. 

“A rushed process doesn’t give us the best outcome. And ‘commercial’ needs to be narrowly and accurately defined — the definitions in prior bill versions are problematic,” Griffin said, adding that she would rather see the Legislature appropriate money for grants so that towns can purchase software to help track OPRA requests and put many documents online or make them accessible via an online tool.

“ Let’s not narrow access — let’s expand it while making the clerk’s job easier,” Griffin said, urging legislators to fulfill promises of a transparent process with plenty of time for the public to weigh in.

“We don’t know what the bill will say and there’s not enough time to create thoughtful policy and to think about bigger consequences,” Griffin said. 

Good government advocates have been reviewing Open Public Records Act logs in recent weeks to analyze what kinds of requests are routinely being made to records custodians. 

“What clerks are complaining about are real estate attorneys or agents filing requests for property records, which everyone needs to buy a home and become a property taxpayer. That’s a basic government service, but the clerks label them commercial requests,” Griffin said. “ They also complain about attorneys filing requests for crash reports, but the proposed way of solving it isn’t going to work. Instead of an attorney filing four requests a month to get them weekly, they’ll file two.”

Griffin said some of the proposed changes that have been suggested would create the same or more work for records custodians.

“None of these changes make sense. They create more work for custodians. Now they will have to log how many requests any particular person makes, or fact-check whether it is ‘commercial’ or not,” Griffin said. “And to the extent they intend to exempt information, that’s just one more thing a clerk has to redact.”

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