Lawmakers in early talks on OPRA reform

New Jersey lawmakers are exploring reforms to the Open Public Records Act in a bid to limit commercial uses of the transparency law, legislative leaders said during a panel on municipal issues Wednesday.

Talks of OPRA reform are still in their earliest stages, said Assembly Speaker Craig Coughlin (D-Middlesex), and it’s not clear yet what changes the state-level freedom of information act could see as a result.

“OPRA’s turning 20 years old, and things have changed over the course of those past 20 years, and so it’s time to have a happy birthday party and tell OPRA to grow up,” Coughlin said.

Like its federal counterpart, the Open Public Records Act is meant to provide New Jersey residents with access to information and documents about how their government operates.

But legislative leaders and municipal officials on Wednesday said use of New Jersey’s public records law had expanded well past the scope of the law’s original intent.

While the law is still used by journalists, researchers, and activists, commercial requestors also file numerous requests that can tax municipal budgets.

“The Open Public Records Act should be what it says it is, and not a cottage industry for datamining and weaponizing for whatever variety of reasons and costing municipalities, counties and other governments millions of dollars in order to compile this data and to provide it,” said Senate President Nicholas Scutari (D-Union).

Commercial requestors include database behemoths like LexisNexis, which builds databases of public records and gleans contact information from the same documents for other services, and law firms, which sometimes use records requests to supplement discovery. Other types of businesses also regularly use records requests.

It’s not clear what share of OPRA requests businesses make, though a 2017 review of federal Freedom of Information Act requests found nearly 56% were submitted by businesses and law firms.

“People use it as a catalyst for their own self-interest, and it kills the ability for us to get it done in an expedient fashion. That’s a small town,” said Millstone Mayor Raymond Heck, who moderated the panel. “I talk to some of my counterparts that are sitting in larger municipalities and cities, and they tell me they have to hire two or three people just to keep up with the OPRA requests.”

As a result, municipalities sometimes have to hire additional staff to process records requests or ensure compliance with the law, straining already stretched municipal budgets.

“Let’s face it, if somebody’s taking up so much time, that means it’s not available for something else. Somebody else is subsidizing somebody else getting a lot of information for free or pretty close to free,” said Senate Minority Leader Steve Oroho (R-Sussex). “That’s obviously the frustrating part, and that has to stop.”

In a brief press gaggle following the panel, Coughlin declined to say whether any reforms would keep in place a fee-shifting provision that requires municipalities and other governments to pay the attorney fees of requestors who overturn a records request denial through a lawsuit.

He said it was too early to say what provisions might be included in an OPRA reform bill. He also declined to say whether a broad exemption that effectively shields legislators from all OPRA requests would remain in place.

Municipalities and the New Jersey League of Municipalities, which hosted Wednesday’s panel at its annual conference in Atlantic City, have railed against OPRA’s fee-shifting provision, charging it encouraged public records suits that taxed municipal budgets even when record custodians attempted to fulfill a request.

Transparency advocates, including former Senate Majority Leader Loretta Weinberg, the architect of several OPRA reform bills, have defended the provision, arguing it creates a check on improper denials that residents might otherwise lack the financial means to challenge.

Legislators are seeking to enact the reforms on a bipartisan basis, said Assembly Minority Leader John DiMaio (R-Warren). Assemblyman Joe Danielsen (D-Somerset) would sponsor the legislation, DiMaio said.