We need to fix OPRA – Let’s start here

New Jersey’s 22-year-old Open Public Records Act, OPRA, is an important public policy that has problems. Many of them are related to age, which has exposed difficulties in dealing with new technologies, the commercial demand for data, administrative complexity, costs, privacy concerns, and loopholes.

It is widely acknowledged that OPRA needs fixing. Recent legislative hearings highlighted that. But debates about changes often involve accusations between parties, making productive discussion impossible. Reforms attempted in private by a few groups fail because they do not consider different viewpoints or unintended impacts. This causes more public distrust in government.

But let’s start with this immutable truth: OPRA can and must be improved. We need to be strategic about amendments so we can fix the underlying processes, accommodate today’s needs, look to the future, and avoid unintended consequences. We can have effective government administration, access to records, and ensure transparency and integrity. To get there, we must improve our systems and practices to make it work better.

A proper OPRA update must start with all stakeholders providing input. This includes all levels of government, the editorial and business sides of the media, businesses, labor, academics, advocacy groups, citizens, and anyone else with views on access to government records. These diverse interests must be balanced to serve the overall public good.

OPRA requires a thorough policy analysis to develop a deep understanding of the issues, one that goes beyond the
anecdotal protests of records custodians.

Ten years ago, a “thought forum” organized by the Public Technology Institute was convened to address opening state government databases. Diverse parties shared ideas in an off-the-record conference, and a report then recommended actions. That report led to New Jersey’s Open Data Initiative law, enacted in 2017. You can see the results of that effort at https://data.nj.gov/ and on many state agency websites.

As the forum’s convener and report author, I can state that this effort showed how diverse groups with different interests can work together and produce a policy result that worked for many.

A similar, more extensive independent effort could help update OPRA by gathering data, researching the issues, hearing from parties in public and private forums, looking at other states’ laws, developing proposals, getting feedback, and ultimately issuing policy recommendations to our decision-makers. This process would require funding and bipartisan political support.

Comments at the recent hearings show that matters such as regulating commercial use, the need for anti-harassment policies, and protection of data from abuse need greater understanding.

For example, the provisions on protecting personal privacy are in conflict, are inconsistent, and include recommendations that date back to 2004. Do these ideas still work two decades later, or are there better approaches? Another example: If digital services are provided, how should residents caught in the digital divide — without access to technology — be served?

The bill also does not address the impact of common law judicial interpretation that will likely limit the effort to exclude records such as calendars or email logs from disclosure. There may be a range of solutions to these issues that should be thoughtfully considered, not just ones that sounds good in the heat of debate and rushed through the Legislature.

The State Policy Lab website contains a more detailed analysis of why an OPRA thought forum is needed and how it could work. The site also contains a more detailed analysis of the original bills (A-4045/S-2930) that will be debated in the Assembly Appropriations Committee Thursday morning. I hope they will help lawmakers, advocates and critics understand the nuances of the proposals, the potential unintended consequences, and how they might be resolved.
Democracy can be messy, and OPRA is complicated. Well-intended and passionate people and groups will disagree on policy.

But public records access – for all New Jerseyans – is fundamental to our democracy. The updated OPRA law also needs to minimize the use of dubious practices for improper or illegal gain, which taints all government actions.

There is work to do. Let’s get started, and let’s get it right.

Read more from Marc Pfeiffer about the solution to fixing OPRA.

Marc Pfeiffer is a senior policy fellow and associate director of Bloustein Local, a unit of the Center for Urban Policy Research at the Bloustein School at Rutgers. He is in his 50th year of public service in New Jersey.