Key provision that guts Open Public Records Act remains as N.J. Legislature prepares for May 13 OPRA bill vote

Some of the most controversial provisions of a bill that weakens government transparency remain in an amended bill that revamps New Jersey’s Open Public Records Act, commonly known as OPRA.

The most problematic and controversial provision in the bill that takes away a citizen’s right to legal fees if the citizen challenges a wrongful denial of public records access in court remains after lawmakers made recent amendments to the bill.

A copy of the amended bill dated May 3 was obtained by The Jersey Vindicator Monday morning from a legislative source who did not want to be named. A few legislators told The Jersey Vindicator the plan is for the bill to be voted on in Senate and Assembly budget committees on Thursday, May 9, with a full vote by both the Senate and Assembly planned for Monday, May 13. The plan is for the amendments to not be published until Thursday morning. As of 12:45 p.m. on Monday, no schedules for Senate and Assembly budget and appropriations committees had been scheduled except for budget hearings.

The process for amending the OPRA bill is not the transparent one legislators claimed would take place in terms of giving people time to review amendments and provide feedback.

A link to the full text of the bill with recent amendments is posted below. The Vindicator will post an in-depth analysis story once we have more time to digest all of the amendments.

Under OPRA, the “fee-shifting” provision that has existed since the law was enacted in 2002 is what gives the law teeth. Citizens and journalists who prevail in court shall be awarded attorney fees under the law. The OPRA bill introduced in March and amended last week says citizens “may” be awarded attorney fees, leaving the decision about whether or not to award legal fees up to a judge. The amended OPRA bill also requires that citizens prove “bad faith” by an agency to be entitled to legal fees, which would be almost impossible to prove.

Many citizens and journalists can find lawyers to represent them because the lawyer is guaranteed that legal bills, within reason, will be paid if they prevail in court. Lawyers only accept legitimate cases because of this provision, knowing they are likely to win and will get paid for their work. Unlike lawyers for government agencies, who get paid whether they win or lose an OPRA case, attorneys who represent citizens take a risk when they take a case and don’t get paid when they lose. Lawyers for citizens traditionally bill for fewer hours than lawyers for municipalities in OPRA cases.

The possibility of government entities having to pay legal fees is the only real enforcement mechanism that makes most government agencies do the right thing and hand over public records. Without the fee-shifting provision, government agencies would be able to violate the law and keep records private with little or no consequences, basically gutting OPRA.

Some controversial provisions of the bill that would shield records from disclosure that are labeled drafts or notes have been removed. But a problematic provision that would remove metadata from disclosure has been expanded. Experts who care about election integrity have voiced concerns about metadata being excluded from disclosure, as the information is used to validate voter records. Journalists have also written important stories disclosing government waste and fraud using metadata from public records.

A police records task force that was going to make recommendations on access to police records has also been eliminated from the bill.

References to data brokers have also been removed from the bill. When the bill was introduced the main reason given for the legislation was to address the problem of data brokers.

The full text of the OPRA bill with amendments as of May 3, 2024