They’re doing it because they can: Democratic leadership in N.J. Legislature seems determined to curtail the public’s rights to know

Open government advocates from dozens of good government groups, lawyers, members of the press, and even representatives from some state agencies have begged, pleaded, written letters, and given hours of testimony expressing concerns about attempts by state legislators to roll back government transparency. 

Residents of the state and activists stood in a line that stretched outside the Statehouse in Trenton Monday to testify against a bill being rushed through the New Jersey Legislature to gut the Open Public Records Act, a law that gives citizens certain rights to find out what school boards, town councils, mayors, counties, and state officials are doing behind the scenes. Records obtained by residents and the press often reveal important information and sometimes expose bad decisions, wrongdoing, nepotism, and corruption. 

Among many of the problematic provisions of the 29-page bill that is being rushed through the Legislature, drafts, notes and metadata would be private, and public records custodians would be allowed to ignore requests from citizens they deem to be “harassing.” If the bill becomes law, records custodians could even sue citizens. 

One of the worst provisions of the bill severely weakens the ability of citizens and the press to fight public records denials. Currently, citizens who go to court to challenge a public records denial are entitled to reasonable attorney fees if the court determines that the information was unlawfully withheld. That certainty would be taken away, with the fee-shifting provision being changed to a provision that would leave fees up to the ourt.

The three people who testified in support of the bill were all paid lobbyists for the government – one represented school boards across the state, another represented counties, and the third represented municipal officials, including mayors and councils. 

Opponents of the bill shared their views on Monday about why so many provisions of the bill are problematic and could have unintended consequences. They offered to sit down with legislators and help them craft a better bill that serves the public and the government.

No one has taken experts and critics up on their offers or amended the bill to reflect any of their suggestions. It appears that nothing they said actually mattered to most of the committee members. The fix was already in.

That became obvious when scanning the committees for familiar faces. Democrats who vocally opposed the bills were removed from the Senate and Assembly committees and replaced with Democrats who would vote yes. Sen. Gordon Johnson from Bergen County was driving to Trenton for the hearing when he received a call informing him that he had been replaced. His replacement was absent for most of the hearing and was among half a dozen Senate committee members who left early, long before citizen testimony was finished. Absent senators were all able to cast their yes votes anyway. The bill passed in the committee by a vote of 9-4, with three Republicans voting against the bill. Sen. Andrew Zwicker was the only Democrat to have the courage to vote no. 

Even more telling, before any vote had even been taken in the Senate and Assembly committees Monday, the Assembly Budget and Appropriations committee already scheduled a hearing on the bill for Thursday.

At the Senate version of the hearing, disinformation was disseminated about what the bill would and wouldn’t do. Sen. Paul Sarlo assured journalists the bill would still allow them to get their public records. Labor unions were told the bill wouldn’t affect them. Move along, move along, nothing to see here.

Sarlo’s claims were blatantly false. Labor unions and journalists would be subjected to the same problematic restrictions being placed on citizens when it comes to so many of the provisions and the vague language of many changes. Just like residents, they would not be guaranteed legal fees for public records battles, meaning many of them would not be able to challenge wrongful denials of access. 

Journalist and activist Charlie Kratovil named some problematic provisions of the bill in his testimony, including a provision that allows public records custodians to sue citizens. Sarlo, the sponsor of the bill, interrupted him and said the things Kratovil mentioned weren’t even in the bill. Kratovil then apologized, saying he hadn’t read the amendments to the bill that were distributed midway through the hearing. But it turned out Kratovil was correct. The bill does indeed include a provision that allows records custodians to sue residents, as Acting State Comptroller Kevin Walsh noted later in the day in his testimony.

Legislators claimed they worked with groups like the New Jersey Press Association and the ACLU to craft the bill, but representatives from those organizations made it clear at both hearings Monday, which were purposely scheduled at the same time, that this was a lie. They were not part of drafting the bills at all. This was done in private with the League of Municipalities. Sarlo claimed he hadn’t heard from the Press Association in months. Cafferty then waved unanswered emails in the air and Sarlo brushed him off.

Sarlo also didn’t seem to understand how fee shifting currently works under the Open Public Records Act. If a citizen wins a case in court, the lawyer representing the citizen gets paid. If the citizen loses, the lawyer doesn’t get paid at all. Lawyers therefore only take good cases where they are convinced the government agency has violated the law. 

Lobbyists also misled the public, claiming ambulance-chasing lawyers regularly sue agencies for clerical errors to make a quick buck. Lawyers pointed out this is false and that no judge would approve legal fees for those frivolous cases. 

Sarlo focused many of his comments about the bill on videos of children in playgrounds, saying “creepy” people and journalists want to get these videos. But as lawyer C.J. Griffin pointed out, these kinds of videos are already excluded from disclosure in New Jersey. 

Legislators claimed all the feedback that was given at the hearing would be considered, but then refused to go back to the drawing board on a bill that many consider fatally flawed. Sarlo said the bill might be like bail reform legislation – adopt it now and make changes years later. 

After the Senate hearing, Sarlo rushed out as reporters approached him for comment. Danielsen didn’t even attend the Assembly committee hearing about his own bill and has refused to talk to reporters, hanging up on those who have called him. In an attempt to deflect criticism about the bill, he pulled a trick out of his hat from the populist dictator’s playbook, claiming that all the reporters are biased and it’s all “fake news.” He alleged that more than half of the new provisions included in the bill promote transparency, claims quickly debunked by Peter Chen, a senior policy analyst for New Jersey Policy Perspective, who analyzed the proposed changes and found that 33 of 41 would restrict the public’s access to records. 

If the bill is approved on Thursday, it will go to the full Legislature for a vote. Then if the Senate and Assembly approve it, the governor will decide whether to sign it or veto it. 

Good government advocates aren’t hopeful that Murphy will veto the bill. Sarlo claimed Monday that the bill was drafted in consultation with the governor’s office over the past year. Gov. Phil Murphy said last week he believes in transparency, but we have to be “practical.” 

Practical for whom? Certainly not for the taxpayers who want to know what the government they pay for is up to. A day after Congressman Andy Kim spoke out against the bill in an exclusive interview with The Jersey Vindicator, First Lady Tammy Murphy issued a statement saying she opposes the bill too. One hows that she would suggest to her husband that he veto the bill. She is his top advisor, after all, and has influenced many of his hires and decisions while in office.

The Legislature and Murphy should send this bill back to the drawing board and come up with a better bill that is developed through a transparent process. If they won’t, why not?

Senators have said different things behind the scenes about why this bill is being fast-tracked. Why should the Legislature put the desires of mayors over the public’s right to know? Some people have suggested it is because so many of the state legislators do business with counties, school boards, and municipalities. Others have suggested it’s all about keeping the political machine well-greased all the way up and down the line so that the machine maintains its power and influence. And then there are others who assume the bill is being passed the way it is because the government at all levels has something to hide.

The Democrats appear to have made a cynical calculation that given the current national political climate, no matter what they do, they are invincible. At the League of Municipalities Conference in November, Democratic and Republican leaders discussed their priorities and said it was time to change OPRA, adding that the public doesn’t use OPRA and doesn’t care. Some legislators blame mayors for the bad legislation, saying they are really the ones who want the bill to pass. They are doing whatever they want because they think they can. Last year, they rolled back two decades of campaign finance reform and got away with it. Then in January, they passed legislation to boost their annual salaries from $49,000 to $82,000. These actions have now emboldened them to gut government transparency, and brazenly so during Sunshine Week, a national nonpartisan celebration that shines a light on the importance of public records and open government. Many of their own supporters are now scratching their heads and wondering how New Jersey Democrats have become such autocrats.

As one activist said Monday, rolling back campaign finance reform and now public records access in the state would be a one-two punch in the face of democracy. The residents of New Jersey deserve better.