N.J. Senate to kick off National Sunshine Week with bill that guts Open Public Records Act, ‘brings darkness’ instead

Editor’s Note: This article was previously published by The Jersey Vindicator, which has made it available to all news media in New Jersey because of the importance of open public records. You can see the complete text of the draft bill at the Jersey Vindicator site.

The Senate Budget and Appropriations Committee will review the bill, S-2930, at a public hearing at 10 a.m. on Monday, March 11 in Committee Room 4 on the 1st floor of the State House Annex in Trenton. Members of the public can attend and comment, and can also contact Senators who serve on the committee. Sarlo chairs the committee, and Sen. Linda Greenstein (D-Middlesex) is the co-chair of the committee.

“It’s shocking that the Legislature has opted to kick off Sunshine Week by putting forth yet another disastrous bill to gut OPRA,” Lawyer C.J. Griffin said. “There is nothing pro-transparency in this bill — every provision that is added or amended significantly undermines the public’s right to information and makes it much harder, if not impossible, for reporters to do their jobs. This bill brings us darkness, not sunshine.”

Lawyer Walter Luers, president of the New Jersey Foundation for Open Government pointed out that the bill was introduced on March 4, and will already be heard by the Senate Budget And Appropriations Committee on March 11.

“Any good faith attempt at reform would have involved all stakeholders. So far, none of the stakeholders that I have contacted this evening were aware of the new legislation,” Luers said. “While we, again, would welcome the opportunity to engage in good-faith discussions on meaningful reform, this is not how the Senate should go about it.”

Major provisions of the bill:

• The bill guts fee-shifting by making it discretionary, not mandatory, which will make it difficult for requestors who are denied records to find lawyers to represent them to fight records denials from agencies that don’t follow the law and wrongfully deny access to public records.
• The bill would make any “draft” private, which experts say makes it ripe for abuse.
• The bill exempts all email logs and call logs.
• The bill makes it much harder to request emails because a “specific subject matter” and “discrete and limited time period” must be provided, and the requestor must identify the specific person (not a job title, for example) whose email must be searched. That means the requestor must know the names of the people involved at the public agency.
• Records custodians can deny any request if the agency thinks it could lead to “harassment,” which is vague and subjective.
• The bill exempts all metadata.
• A “task force” would be created to study police records, and the task force would be stacked with law enforcement and government representatives.
• The bill exempts email addresses, home addresses, and pet license information.
• The bill mandates the use of an OPRA request form, adding one more hurdle to obtaining records. Currently, citizens can email requests without using an official form.
• The clock starts ticking for custodians to fill a request when the custodian “receives” the request. This means if a custodian is away from work, those days don’t count in terms of the timeframe for responding to requests. As it already stands, most custodians routinely request one or two extensions to produce records.
• Records custodians will no longer have to give requestors documents in the format the requestors want anymore. For example, you may want a document sent to you via email, and the custodian could insist on giving you a paper copy instead.
• You cannot request a record if it relates to current litigation against a public agency or if it is duplicative of a discovery request. Lawyers say this affects their ability to do work for their clients.
• Records custodians can take 14 days to fill a request if they have to review it for Daniel’s Law compliance. Daniel’s Law forbids the disclosure of home addresses for public officials.
• The bill would take away the incentive to comply with OPRA because it revokes the personal liability of records custodians for willful violations of the statute. Instead, the agency and thus the taxpayers would pay the fine. 
• The bill also significantly limits “commercial” requests.

Luers said the provision of the bill that requires a records custodian to deny access “when the public agency has reason to believe that disclosure of such personal information may result in harassment, unwanted solicitation, identity theft, or opportunities for other criminal acts”  would open the floodgates to denials of access of all kinds of records since it’s theoretically possible to misuse any information or data.

The bill would reverse a landmark case, Paff v. Galloway, by eliminating access to email logs.  It would expand OPRA’s privacy provision to require records custodians to protect from public access “information that might reasonably lead to disclosure of a person’s personal information.” 

“Might” is an awfully thin reed on which to perch a brand new exception to access,” Luers said.