Lawmakers prepare tweaks to public records law that critics call an assault on transparency

Bills would add restrictions for frequent requestors, create new fees, limit what records are public

By: - June 16, 2023 5:39 pm

Proposed changes to the state Open Public Records Act are "essentially an eclipse on sunshine," said one critic.

A series of bills tweaking provisions of the Open Public Records Act introduced Thursday would sharply restrict the accessibility of government documents, transparency advocates are warning.

The four-bill package backed by Assemblyman Joe Danielsen (D-Somerset) would bar records requestors from directly challenging denied requests in Superior Court, shield documents related to public contracts from disclosure, impose limits on residents who file frequent records requests, and set new rules for businesses seeking government records.

“The bills on balance are essentially an eclipse on sunshine. These are not beneficial,” said John Paff, a prolific records requestor who chairs the New Jersey Libertarian Party’s open government advocacy project.

The provision of one bill that would limit court challenges of OPRA denials has transparency advocates particularly alarmed. Instead of allowing people who are denied access to records a chance to take the matter before a judge, the bill would mandate that they first lodge an appeal with the Government Records Council. That’s the state agency tasked with adjudicating records disputes, where it takes nearly two years on average to sort through a records claim.

Under the bill, requestors could appeal a decision made by the council, but appellate courts would be required to defer to the panel.

“I’m not saying there are not problems with OPRA, and maybe some things have to be changed, but separating the requestor from legal help, forcing them into a system that has been shown countless times to be inadequate — that being the GRC — seems to be going in exactly the opposite direction of the way we should be going,” Paff said.

The bills would provide more funding for the Government Records Council, an added $250,000 (the agency has a $498,000 budget this year), and would expand the size of its board from three to seven. It would also remove the requirement that the council’s board members be confirmed by the state Senate, and instead allow the governor, Senate president, and Assembly speaker to make direct appointments.

Danielsen suggested the additional funding would speed up clearance times.

“If there’s a delay, you fix the delay. If GRC is slow to act, then we fix that,” Danielsen said. “And I do think we need to put more resources into GRC. GRC needs more reviewers, more attorneys.”

Assemblyman Joe Danielsen said residents who speak to him do not express concern about access to public records, but they do gripe about the costs associated with “abuse of the system.” (Dana DiFilippo | New Jersey Monitor)

The bill would also remove a mandate for courts to award counsel fees to requestors who successfully sue over a denied records request. Any fees that are awarded would be based on a municipality’s own counsel fees, which are drastically lower than those found in the private sector, said CJ Griffin, an OPRA attorney who leads the Stein Public Interest Center. Griffin has represented the New Jersey Monitor in public records disputes and other legal matters.

Local governments have railed against the fee-shifting provision for years, saying it strains municipal budgets and encourages lawsuits even when a records custodian sincerely attempts to fulfill a request. Under current law, the fee shift occurs only if a court rules that a municipality improperly denied access to public records.

Court decisions have been responsible for numerous expansions of the records available under OPRA, including settlements to which governments are party and certain police records. The bill does not preclude records lawsuits filed under the common law right of access.

Danielsen, who said the bill would see numerous amendments, said the Legislature would seek to codify the so-called Glomar response — in which agencies decline to confirm or deny the existence of certain records — but those provisions are not yet present in the bill package. The term stems from the CIA’s efforts to stop the spread of information about its efforts to recover the wreckage of a Russian submarine in 1974.

All four bills were referred to the Assembly Oversight, Reform, and Federal Relations Committee, where Danielsen is chair, instead of the Assembly State and Local Government Committee, which OPRA bills typically flow through.

Danielsen said the panel is tentatively set to hear the bills at its June 22 meeting but said he has no timeline for their final passage.

“Frankly I hope we go slow because I’ve been interviewing people for almost 10 years, and now I have something on top of the table that will eventually move,” he said. “I want to hear from everybody again.”

The bills on balance are essentially an eclipse on sunshine.

– John Paff, the New Jersey Libertarian Party’s open government advocacy project

The bills are part of a broader effort to tamp down on commercial records requests that records custodians say have choked their offices and driven sharp increases in staffing costs, though most of the changes made by the package would affect all requestors, not just those making requests for commercial purposes.

The New Jersey Supreme Court in 2021 ruled that business owners have the same right as other residents to request government records, finding a Bergen County invisible fence installer could obtain records showing the home addresses of Jersey City dog owners.

“Commercial requests should be charged. They should pay that bill if it’s a commercial request. That’s the big one,” Danielsen said. “That should be a requirement, that you must charge for commercial requests. The taxpayer should not have to pay the cost.”

Other bills in the package would expand OPRA exclusions, exempting from disclosure all metadata, all documents related to a person’s application for public contracts, permits, and registrations, among other documents.

They would entirely shield from disclosure any government documents held by a third party and subject to a non-disclosure agreement, a provision that would effectively allow the government to hide any document, attorneys who spoke to the New Jersey Monitor said.

“All they have to do is enter into confidentiality agreements with whoever they want, and the stuff’s not a public record, whatever it is,” said attorney Walter Luers,  who leads the OPRA practice at Cohn Lifland Pearlman Hermann and Knopf.

Proposed changes would also require records custodians to redact all telephone numbers — including ones that are public-facing — email addresses, and social media handles from government records, provisions that critics said would slow responses and drive up custodians’ workload.

Danielsen said such redactions could be made using computer software and are needed to protect residents’ privacy.

“The Supreme Court has recognized, and so does New Jersey statute under OPRA, the importance of protecting people’s personal identity,” he said. “That responsibility goes higher than any other responsibility when it comes to open public records, and we are addressing that.”

Yet other provisions would create new fees for public records requests and require automatic denials for any request that asks custodians to sort and collect information.

Records custodians often ask to provide such collated lists in lieu of documents when responding to broad OPRA requests to save on labor. Any request automatically denied under these provisions could not be appealed to the Government Records Council and, therefore, could never come before a court.

“The whole point of computers is to make collating data easier. It would be an odd thing indeed if the presence of computer databases is actually hampering the public’s right to know. The government can look these things up,” Paff said.

Custodians would not be barred from voluntarily providing such lists under the bills, Danielsen said, but “it may preclude them doing it for free.”

Other provisions of the bills would:

  • Mandate automatic denials for requests submitted by the same person that sought similar records across different dates.
  • Extend the seven-day response deadline to 20 days for certain repeat requestors.
  • Allow custodians in jurisdictions that accept electronic records requests — virtually all do — to direct requestors to a public computer with records access in their municipality (it’s not clear if that provision supplants the need to provide responsive records).
  • Require custodians to post some documents — including meeting minutes, budgets, collective bargaining agreements, and employment contracts, among others — to a public municipal website.
  • Allow governments to seek court orders to bar residents from making records requests for up to a year if their requests had “substantially disrupted the operations” of an agency or records custodian. The bill does not define substantial disruption.
  • Require all records requests to be made using forms drafted by records custodians. That legislation limits commercial requestors to two records requests to a given custodian per month and requires they disclose the commercial nature of their requests. Requestors who hide their commercial nature would be subject to fines.

Danielsen said he does not expect members of the public to object.

“I’ve knocked on tens of thousands of doors over the last 25 years. Never once did anyone have a concern with public records access,” he said. “That’s not in the top 100 of their concerns, but what is in their concerns is the tens of millions of dollars that are being wasted on abuse of the system.”

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Nikita Biryukov
Nikita Biryukov

Nikita Biryukov most recently covered state government and politics for the New Jersey Globe. His tenure there included revelatory stories on marijuana legalization, voting reform and Rep. Jeff Van Drew's decamp to the Republican Party. Earlier, he worked as a freelancer for The Home News Tribune and The Press of Atlantic City.