Democracy in peril: Why you should care about the N.J. Open Public Records Act bill

The New Jersey Legislature appears to be determined to gut the state’s Open Public Records Act (OPRA) despite how unpopular the move is with good government groups and the public at large.

A vote on OPRA legislation in both the New Jersey Senate and Assembly that will roll back government transparency is scheduled for Monday, May 13, just a few days after amendments to the bill were released.

The bill is part of an ongoing attack on government watchdogs in the state. It targets the public and the press, making it harder to file public records requests, access emails, and sue for access. It gives data brokers a free pass and commercial entities special priority to get responses in seven days.

One of the most alarming changes included in the bill removes the fee-shifting provision that guarantees the awarding of legal fees to residents who go to court to challenge wrongful denials of public records access. It will be difficult for residents to get legal representation to fight for their rights to records if the legislation passes. Only commercial entities and the rich will be able to afford a court battle. The fee-shifting provision being removed from the OPRA statute is also the only deterrent that motivates government agencies to do the right thing and cough up public records.

More records will become private and it will be difficult to get elected officials’ emails and other documents. Residents will have to know the name, title, time, and subject when making requests, meaning they would have to know exactly what they are looking for when one of the main objectives of filing public records requests is to find out information one doesn’t know yet.

Residents also won’t be allowed to make the same request to more than one agency at a time under the bill, meaning it will be impossible to track systemic issues regarding how government functions.

More secrecy in government is never a good thing. It leads to more waste and fraud. This increases government costs, which are then passed along to the taxpayers.

“OPRA enables the press and the public to be watchdogs — to look for corruption, waste, wrongdoing, and violations of the public trust. This bill guts the public’s right to enforce OPRA, and what good is any law if it can’t be enforced?,” attorney and open government advocate CJ Griffin said. “If these public agencies came crying that they had too many discrimination judgments against them, I sure hope the Legislature wouldn’t just gut the law against discrimination, but would instead tell them to stop discriminating. But here that’s essentially what’s happening — towns and counties are whining that they have to pay for legal fees because a judge found them in violation of the law. Instead of following the law, they are asking the Legislature to make sure no one can sue them.”

Back in March, lawmakers claimed the chief reason the legislation was needed was to crack down on data miners and commercial entities that profit from information they obtain using OPRA.

It is now clear that the rationale was just a bogus excuse to win over lawmakers and the public, and that the real goal is for politicians to do the people’s work behind an iron curtain of secrecy. The amended bill removes clauses limiting data miners and commercial requesters. In fact, thanks to lobbyists for data companies, commercial requesters will have more rights to obtain records than taxpayers under the amended bill. Commercial requesters will be able to pay a fee to have their requests for public records expedited.

Legislators have now changed up their excuses and argue that the bill is needed to control the cost of litigation in public records lawsuits. Public agencies often roll the dice when they don’t want to give out certain records, denying requests in the hope that residents won’t sue. But instead of reducing the ability of residents to get legal fees, the best way to reduce costs would be to have government agencies do the right thing and give residents the records they are entitled to — it’s that simple.

The state and towns could also invest in technology to put certain records online. More than half of all public records requests at the local level are for documents needed for individual real estate transactions. New York City puts them online. New Jersey can too.

Apparently, in an era of polarization, more government secrecy is something both Democrats and Republicans can agree on in New Jersey. The OPRA bill has bipartisan support. Leaders in both parties have been pressing for the bill’s passage. They even removed legislators who expressed opposition to the bill from legislative committees that voted to advance the bill.

It should be noted that legislative leaders, bill sponsors, and many legislators have contracts with municipalities and other government agencies pushing for the passage of the bill. These legislators have a financial interest in appeasing the people who want the bill passed. In other words, too many legislators are working in their self-interest, not the public’s interest.

The main lobbyist for the bill is The League of Municipalities, which represents mayors and governing bodies across the state. Assembly Speaker Craig Coughlin, a big supporter of the bill, is a lawyer whose firm represents numerous municipalities. As NJ.com reported on April 25, his firm has made millions representing municipalities since he became the speaker. Sen. Anthony Bucco is also a lawyer whose firm represents municipalities. So is bill sponsor Victoria Flynn in the Assembly. Senate President Nick Scutari is a prosecutor and is the chair of the Union County Democratic Committee. Senator Paul Sarlo is the mayor of Wood-Ridge and is the chief operating officer at Joseph M. Sanzari, a highway and heavy construction firm that receives millions in government contracts each year.

Acting State Comptroller Kevin Walsh, the top government watchdog in the state, has sounded the alarm about the OPRA bill more than once. He said Thursday after reviewing bill amendments that his concerns remain, and that the legislation would result in “less transparency, and make it harder for residents to hold government accountable.”

Voices of elected officials who oppose the bill have been ignored. Jersey City Mayor Steve Fulop, Newark Mayor Ras Baraka, and Hoboken Mayor Ravi Bhalla are just some of the politicians who have spoken out against the bill. So has U.S. Rep. Andy Kim, who says the bill will erode people’s trust. Thursday he called on state officials to pull the bill.

“In this time of such significant distrust in government, we should be working to increase transparency and accountability, not taking further actions to shield it,” Kim wrote.

Two Democrats vying for Kim’s seat now that he is running for the U.S. Senate, Herb Conaway and Carol Murphy, both came out opposing the bill last week, showing that legislators are very aware that the public doesn’t support it. Legislators who support the bill also know this. They wanted to pass the bill during the lame-duck session but changed their minds because they were giving themselves $33,000 raises and knew the optics of doing that and gutting OPRA at the same time looked terrible.

Members of good government groups have urged residents to call and write their state legislators and Gov. Phil Murphy expressing their opposition to the bill. Thousands have contacted legislators already. It is unclear who is listening.

Murphy has not said anything publicly to indicate whether he would consider vetoing the bill. He seems to buy into the false claim that the bill somehow modernizes the law. Will he create a legacy of promoting secrecy or transparency, democracy over autocracy? Will New Jersey follow in the footsteps of states like Michigan that are expanding access to records, or be more like Louisiana, which is seeking to limit access? Only time will tell. New Jersey already has one of the weakest public records laws in the country, and one of the weakest government compliance rates, 48th among all states.

Good government groups like the League of Women Voters have not given up, and are continuing to fight for public access by writing letters and making calls to legislators. Some organizations have vowed to run good government candidates in the primaries if lawmakers continue down the path of secrecy. If the county line ballot disappears for good, they might actually have a shot at getting candidates elected who listen to the will of the people instead of the powerful and special interests.