Legislature should stop blocking expansion of public records access

November 18, 2021 6:55 am

State Senate Majority Leader Loretta Weinberg attends a press conference May 1, 2015 in Newark. (Photo by Kena Betancur/Getty Images)

The Legislature is killing what could be its last chance in years to expand access to public records in New Jersey.

Republican opposition plus Democratic silence helped scuttle the advancement Monday of S-380, a bill backed by Sen. Loretta Weinberg (D) that would revise the Open Public Records Act in a few meaningful ways.

One of the proposed changes could curtail one oft-abused provision of OPRA that allows public officials to shield documents. Another would define the word immediate, which sounds like a dumb thing to do but the word has a different meaning for some of New Jersey’s public records custodians than it does for literally everyone else.

When the bill went before a Senate committee Monday, Sen. Linda Greenstein (D) abstained without comment. With Sen. Dawn Addiego (D) absent and the panel’s Republicans opposed, the bill did not advance. A version of the measure has died in the last two legislative sessions.

I’m not sure what Greenstein’s problem with the bill is — she told me she was too busy to chat by phone — but I’ve talked to enough records custodians and municipal lawyers in my career to know they hate OPRA and there’s no appetite among them to see it strengthened. They think it’s too strong already.

Mike Cerra, who runs the New Jersey League of Municipalities, opposes the bill because he said it requires more compliance at a time public entities don’t have the staff or time to comply with OPRA requests as the law stands. A new provision that would require subcommittees  – say, a panel of three council members and others meeting to draw up cannabis regulations — to produce OPRA-able documents would deter people from signing up to help their towns govern, he said.

“It’s hard enough to get people to volunteer as it is,” Cerra said.

What bugs me in particular about this bill failing is not so much the parts of the measure that would expand OPRA, like the provision about council subcommittees. But OPRA is regularly abused by state, county, and town officials who like to keep things secret, and the bill Greenstein helped kill would make it harder for them to do that.

Here’s one way: OPRA requires records requesters get immediate access to a group of documents like budgets, bills, labor contracts, salary info, etc. But it’s rare you get that info immediately. Once I waited from Jan. 25 to March 16 for a list of salaries from Jersey City (I don’t mean copies of paychecks that need to be redacted; I mean an Excel sheet that probably took a few clicks to export from their payroll software and email to me). The city of Newark is better, but I’ve waited almost a month for its salary records. A public agency once sent my salary OPRA request to their lawyers, who eventually mailed me a printout of salaries, then charged the agency/taxpayers. Swell system.

Weinberg’s proposed OPRA rewrite would close this loophole by including this: “Immediate access shall mean by the close of business or 5 p.m., whichever is earlier … If the request is received at noon or if received after noon, the request shall be fulfilled by noon.”

Here’s another way the bill helps increase transparency: Records custodians (and/or their lawyers) loooove the OPRA exemption that allows them to shield records that are “advisory, consultative, or deliberative” in nature. I cannot tell you how many documents I’ve asked for that magically fall into one of those categories. And, unless you sue, you’re at this exemption’s mercy. Media companies can hire lawyers. Not everyone can. Weinberg’s bill adds language that more specifically defines that exemption.

This may seem like a reporter-only problem, but only about 1% of the time are reporters using OPRA to settle some personal grudge with a politician (DM me for details). The overwhelming majority of the time, we’re using it because we think the records might contain information the public should know. OPRA is how S.P. Sullivan and Stephen Stirling at discovered a funeral director collected hundreds of thousands of taxpayer dollars despite complaints his company mishandled dead bodies. It’s how Ashley Balcerzak at The Record obtained coronavirus deaths data broken down by zip code. It’s how Audrey Quinn and Matt Katz at WNYC informed the public on suicides in New Jersey jails. These are important stories, likely untellable without OPRA.

I sympathize with many clerks and their staff, the ones who genuinely want to comply with the law. But too many times, their bosses hijack the system and waste the public’s time fighting to keep secret records that are plainly public documents.

Weinberg, who is a longtime OPRA champion, is retiring in January and it’s not clear anyone in the Legislature is going to take up the mantle of her leadership on this issue. This is why it’s so important to strengthen OPRA now. If not now, never.

But that, I suspect, is what the Legislature’s leaders are counting on.


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Terrence T. McDonald
Terrence T. McDonald

Editor Terrence T. McDonald is a native New Jerseyan who has worked for newspapers in the Garden State for more than 15 years. He has covered everything from Trenton politics to the smallest of municipal squabbles, exposing public corruption and general malfeasance at every level of government. Terrence won 23 New Jersey Press Association awards and two Tim O’Brien Awards for Investigative Journalism using the Open Public Records Act from the New Jersey chapter of the Society of Professional Journalists. One politician forced to resign in disgrace because of Terrence’s reporting called him a "political poison pen journalist.”