Ten ways the latest Open Public Records Act (OPRA) bill guts transparency in N.J. and weakens the public’s right to know

A bill being rushed through the N.J. Senate and Assembly would gut the state’s Open Public Records Act (OPRA) by limiting the public’s ability to fight for public records. 

New Jersey’s Open Public Records Act sets forth how residents can access government records, which records are accessible, and what the penalties are for government agencies that fail to comply with the law. The law has become a critical tool for residents and journalists to obtain information that sheds light on how government functions.

On Thursday, May 9, and Friday, May 10, Senate and Assembly committees approved S2930/A4045. Legislative leaders are pushing for the full Senate and Assembly to pass the bill on Monday, May 13. The Senate is scheduled to vote on the bill at its 10 a.m. session and the Assembly is scheduled to vote at its 1 p.m. session.

For more than a year, legislators have been working behind closed doors with paid lobbyists representing local and county officials to craft the current bill that would revamp OPRA. After public outcry about many of the bill’s provisions in March, legislators promised an open and transparent process for changes and debate. That never happened. Amendments to the bill were not even posted to the N.J. Legislature website before the Senate committee hearing.

Flaws of the bill

1. The top problem with the bill is that it guts what is known as the “fee-shifting” provision of OPRA. Under current law, citizens who challenge wrongful denials of public records requests in court are entitled to attorney fees. Lawyers agree to represent citizens and journalists without charging them. The lawyers accept only the cases where they believe government agencies have wrongfully denied citizens or journalists access to records. Lawyers agree to take the cases knowing they will get paid for their work if they win in court.
   
   The bill changes the wording “shall” be entitled to legal fees to “may,” leaving it up to judges to decide whether to award the legal fees to lawyers for citizens and journalists. (Editor’s note: Lawyers for government agencies always get paid for their legal work on OPRA cases, no matter what, win or lose.)
   
   Under the legislation, the only time a judge “shall” award fees is if the citizen can prove “bad faith,” which is nearly impossible. The “may” provision of the bill will make it more difficult for citizens and journalists to get lawyers to represent them to challenge wrongful denials of records. 
   
   Eliminating fee shifting also takes away the main enforcement mechanism of the law. Currently, the threat of going to court and paying legal fees motivates most government agencies to provide the records. Making fees optional would mean too much risk for lawyers. Many wrongful denials of records would never get challenged in court. Knowing this, government agencies would be more likely to withhold public records knowing the denials wouldn’t be challenged.
   
   Legislative leaders have argued that the elimination of the fee-shifting provision will save taxpayers money. Open government advocates counter that government agencies can avoid legal fees by properly providing public records. Acting State Comptroller Kevin Walsh pointed out in testimony in March that a more secretive government results in more waste and fraud.
   
2. The bill allows government agencies to sue citizens who request records. 
   
   Under the legislation, government agencies could go after citizens and journalists who seek records “with the intent to substantially impair the performance of government function.” This is vague. Government agencies could use this provision to retaliate against citizens who request public records. It could have a chilling effect on requests and government transparency. 
   
3. Under the bill, special service charges by government agencies would be “presumed reasonable.” The burden would be on the citizen who requests records to prove the fees are unreasonable. 

4. The bill prohibits citizens and journalists from submitting the same public records request to multiple government agencies. 
   
   Submitting the same public records request to multiple agencies is standard practice and often results in citizens and journalists receiving more records that shed light on how the government functions. If one agency isn’t complying or is slow, the requester often gets the record more quickly through another agency. Sometimes the requester also receives documents from one agency that were not provided by other agencies.

5. The bill allows records custodians to deny requests if there is a “reasonable expectation of privacy.” This is vague and could lead to blanket denials of records access.

6. The bill requires requesters to be too specific when requesting public records. Some language in the bill is vague and the wording could be construed to exempt email logs.
   
7. The bill would exempt metadata from release, including the titles of documents. Experts made it clear during testimony in March that metadata is critical to verify voter registration information to protect the integrity of elections. Journalists have written substantial stories about how the government functions by looking at metadata. The language in the bill about metadata is also unclear about what isn’t included. 
   
8. The bill would allow records custodians to deny records requests if requests submitted in letters or emails include too much or too little information. The custodian can deny the request if the letter or email includes “substantially more information than required on the adopted form.” This is vague and could result in unnecessary denials.
   
9. The bill eliminates a proposed police records access task force. The original bill stacked the task force with law enforcement officials. Instead of changing the makeup of the task force, it was eliminated entirely. Access to police disciplinary records is a critical issue that needs to be addressed in OPRA. 
   
10. The bill requires the Superior Court to provide the Government Records Council with a list of OPRA lawsuits. The Government Records Council must then compile a database with the information, including the case caption, county, docket number, lawyers, case disposition, and legal fees that were awarded. The Government Records Council must also create a report and submit it to the Legislature biannually that lists all government record requests filed, the name of the requester, the name of the agency, the date of the request, the information provided, the deposit made by the requester, the disposition, a summary of documents provided, and the cost to the agency. The database and report are unrealistic, especially for agencies already burdened with too much work. The Government Records Council is understaffed and many cases take months or years to be adjudicated because they are so far behind. The purpose of the database and report are also unclear, other than to single out requesters and their lawyers.

Revisions to the bill made since Thursday also remove the first section of the statute that says government records shall be readily accessible for inspection, copying, or examination by citizens, and the law “shall be construed in favor of the public’s right of access.”

The supporters of the bill argued originally that the bill was needed to protect agencies from data miners. But the provisions of the bill related to data mining have been removed from the bill.

Legislators have also argued that the bill is necessary to protect sensitive information like driver’s license numbers, social security numbers, and credit card information. Those are already protected under OPRA.

A recent poll found that 81% of New Jersey residents oppose changes to OPRA. Yet legislative leaders and the sponsors of the bill in the Senate and Assembly seem determined to push the bill through. The bill now has bipartisan support, with Republicans signing on as sponsors.

You can voice your opinion about the proposed changes to OPRA by contacting your legislators. The rooster of legislators with contact information is available on the New Jersey Legislature website.

The ACLU opposes the legislation and has set up an online form where residents can email the governor and legislative leaders. The League of Women Voters also opposes the legislation and has created an online form as well.