Latest OPRA bill amendments appears to remove first section of current law that supports the public’s right to know
Sometime after New Jersey Senate and Assembly committees held hearings Thursday and Friday on a bill that would roll back transparency in the state and make it much harder for residents to challenge public records access denials, the controversial bill was amended again, this time to remove the entire first section of the Open Public Records Act (OPRA) that supports the public’s right to know.
The revised bill now eliminates the first section of the state statute that stresses the overarching principle supporting the public’s right to records.
Lawmakers have removed wording in the statute that says OPRA be construed in favor of the public’s right of access.
Wording that says government records shall be readily accessible for inspection, copying, or examination by citizens of this state has been removed from the bill that would replace the current statute.
Amendments also eliminate wording that says all government records shall be subject to public access unless they are exempt from such access under certain other laws.
The latest amendments also remove the section of the law that says nothing in the law should be construed as affecting the common law right of access to any record, including criminal investigatory records of law enforcement agencies. Often when public records aren’t available under OPRA, they are still available under New Jersey’s common law.
A few other amendments have been made to the bill since it was approved by the Senate and Assembly committees on Thursday and Friday. For example, the definition of a labor union has changed in the latest amended bill.
Asked about the changes over the weekend, some lawmakers were unaware they had been made. Others seemed to think there was some mistake and the first and most important section of the law that favors public access was removed in error. But a look at the amended bill shows the removal of the first section is likely deliberate. The entire statute has been renumbered to account for the removal of the key first section. One legislator said Sunday afternoon that the changes aren’t just stray brackets and have been made on purpose. It’s not clear when this happened. The change was attributed to the Senate committee, but the removal of the first section was not in the amended bill Thursday when the committee voted to advance the bill.
Open government advocate and lawyer CJ Griffin said the first section of the bill is crucial. The removal would shift records access and result in more secrecy in government.
“The entire lens through which OPRA is to be viewed is set forth in the first section — it instructs agencies and judges to construe every exemption in favor of access,” Griffin said. “So if anything seems unclear or a close call, you side with disclosure. This will result in folks siding in favor of secrecy.”
Section one of the current law that has been removed as part of the latest amendments could mean the public will lose access to critical documents.
“Section one says an OPRA exemption does not stand in the way of a common law right of access,” Griffin said. “It’s unclear what that impact could mean — could we lose access to police internal affairs reports, dash cam videos, and other records we have won through the common law?”
The New Jersey Senate and Assembly are both slated to vote Monday on the OPRA bill that rolls back transparency. If Gov. Phil Murphy signs the bill, New Jersey will join the ranks of states like Louisiana that are seeking to limit citizens’ access to information. On Saturday, the Freedom of the Press Foundation listed New Jersey as a national embarrassment for legislators’ blatant attempt to gut the Open Public Records Act.
Lawmakers have been pushing for the bill over the past several months under the premise that it will stop data miners and commercial interests from abusing OPRA. However, lobbyists for data companies were able to get all of the provisions impacting them removed from the bill. As part of the amendments to the bill made a week ago, data miners and commercial entities instead would have special privileges the public does not have and would be able to pay for expedited access to records.
Documents referenced in this story
The amended bill as of the Senate and Assembly hearings Thursday and Friday: https://drive.google.com/file/d/1AeZqrAIU5R–bNmTY1d6fCbd79mOAWV8/view?usp=sharing
The latest amended bill as of the weekend, with the first section struck from the statute and the entire statute renumbered to account for the removal of the key first section: https://drive.google.com/file/d/10Sj2t7QT3M_inO7mPU7RvLsKtg1o_tbr/view?usp=sharing
A notation in a PDF version of the bill states that anything in brackets with a 2 next to it was omitted during the Senate committee hearing on May 9. However, the omission of the first whole section was not part of the amendments shared with the public or placed online during the committee meeting on May 9. The amendment of the first section and other word changes appear to have been made later.
More on OPRA
Democracy in peril: Why you should care about the N.J. Open Public Records Act bill
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Krystal Knapp is the founder of The Jersey Vindicator and the hyperlocal news website Planet Princeton. Previously she was a reporter at The Trenton Times for a decade.