By Lev D. Zilbermints
The Open Public Records Act, or OPRA for short, may be in danger of being rendered toothless by several bills introduced in the New Jersey Legislature on June 15. Depending on who you talk to, the bills would either update the OPRA, or make it worthless.
“Local Talk” checked nj.com, Politico, and the website of the New Jersey Legislature for information. What follows is the result of diligent research by “Local Talk.”
According to the Government Records Council website, the Open Public Records Act was passed on January 8, 2002. It replaced the old “Right To Know Law” which until then was used to obtain information. However, OPRA was passed at a time when the word “records” meant reams of paper, not electronic records. Email was still new, flash drives did not exist, and social media, such as it was, varied greatly from what is in existence today. There was no Facebook, Instagram, TikTok or cell phones as they are known today.
State Assemblyman Joe Danielsen (D-Somerset) has introduced four bills to amend the Open Public Records Act. According to the New Jersey Monitor, Danielsen said that the bills were the product of a years-long effort to better protect privacy and rein in records requests from commercial businesses who crush local governments with large data requests and then sell that information for profit.
What the proposed bills would do to OPRA
According to New Jersey Monitor, nj.com and the New Jersey Legislature website, the four bills Danielsen introduced on June 15 are A5613, A5614, A5615, A5615. These bills, according to above-cited sources, would:
- Extend the deadline for response from 7 days to 20.
- Provide penalties for individuals who fail to disclose if they plan to use records for commercial purposes.
- Limit the number of requests an individual can make at once and prohibit anonymous records requests.
- Exempt metadata and other information currently covered by OPRA from public disclosure.
- Require records requesters who are denied go through the Government Records Council before suing in court. Currently, the GRC takes an average of two years to rule in records disputes, though the measure would also provide the council more funding.
- Do away with a provision that mandates requesters who successfully sue over a wrongful denial can recoup attorney’s fees.
- Allow custodians in jurisdictions that accept electronic records – 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 employee contracts, among others – to a public municipal website.
- Allow governments to seek court orders to bar residents from making records requests 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 requesters to two records requests to a given custodian per month and requires they disclose the commercial nature of their requests. Requesters who hide their commercial nature would be subject to fines.
What OPRA means
According to Marc Pfeiffer, as reported by nj.com, OPRA was intended to give members of the public – particularly the news media – timely access to government records, from local budgets to police reports and state government contracts. Mr. Pfeiffer, a senior fellow at the Bloustein Local Government Research Center at Rutgers University, helped to draft the law.
More than two decades later, the Open Public Records Act is used to obtain information that would otherwise be hidden behind the proverbial seven seals. These include police overtime,
municipal contracts, COVID-19 deaths in nursing homes, boardwalk scams, police dash cameras, salaries of professors and staff at universities, documents from municipalities, and more.
Interview with a Lawyer
CJ Griffin, a lawyer who heads Stein Public Interest Center, was interviewed by NJ Spotlight News on June 19. Ms. Griffin told NJ Spotlight that many changes would make OPRA ineffective. The video is available on YouTube.
Superior Court can no longer hear case
According to Griffin, “OPRA’s fee shift and your right to go to court are the two enforcement mechanisms of OPRA that really mean that agencies have to comply with it. … So right now, if an agency denies your request and you think that request was unlawful, you can consult an attorney. Because there is a mandatory fee shift in OPRA, meaning if you win in court, the agency has to pay your bills.
“Lawyers like me (Griffin) are willing to take a case. We evaluate it. If we win, we will represent you and we will pay the filing fee and we will not charge you any legal fees. And when we win, the agency will pay our fees. … And then there is a risk of non-payment and what we can do is we can go to two forums. Right now, we can go to Superior Court and have a judge decide our case. Or you can go to the Government Records Council, or GRC.
“I always go to Superior Court because it’s just a much better and faster forum. The GRC takes two years almost to hear a complaint. A5614 takes away the right to go to Superior Court. A judge can no longer hear your case now. You have to go to that very slow GRC forum. They are giving the GRC $250,000 which is never going to fix the problem.
Change how Government Records Council Members are selected
Griffin: “Even worse, they (legislators) are changing the way in which GRC members are selected. So right now, the Governor appoints them with the advice and consent of the Senate.
Now (if OPRA is amended) just the Governor, the Speaker of the Assembly and the Senate
President decide who is on this, on the GRC without any (other) voices in the mix. So it’s
already, you know, that causes me concern about who might be deciding the cases, let alone
that it is the GRC that is the one that denied the request.
Mandatory fee shift taken away
Griffin: “Then, to make matters worse, they are taking away the mandatory fee shift so it’s an optional feature. And then on the top of that, they are saying, “well it’s an optional fee shift and if they do award you fees it will be at a very low rate. That means the poll attorneys are paid. And on top of that, whenever you apply for fees from GRC or (Superior) Court they also review your bills and they mark downtime that they think was excessive.
“… An attorney like me, it would be next to impossible to take a case because if I take a case now, my risk of non-payment is that if I lose. But in this (new) setting, the risk of non-payment is that if I lose, I do not get paid. If I win, I might not get paid. If I do happen to get paid, my time is going to be cut and they are going to give me this very low rate and so it just makes it really impossible. And without that fee shift no one can afford thousands of dollars to pursue public records, not even the media that is laying off reporters,” Ms. Griffin told NJ Spotlight News.
Sponsor of OPRA amendments alleges no one came to him with concerns about revising the Open Public Records Act
Griffin said that Assemblyman Danielsen did not speak to the right people about revising the Open Public Records Act. According to the New Jersey Monitor, Assemblyman Danielsen said that the issue of revising OPRA is not important to the public.
As reported by the New Jersey Monitor in its June 19, 2023 issue, Danielsen said, “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. That is 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.”
Griffin, the lawyer, said in the interview with NJ Spotlight News that Assemblyman Danielsen was speaking to the wrong people.
“Because if I think he spoke to reporters, if he spoke to people that were really tuned in, they do care. And I also hear outrage from people about the amount of money that municipalities waste complying with OPRA but it’s not because of OPRA. It is because municipalities are often very secretive. They sometimes deny access to records. No, they have to know that there is no lawful basis to do so and they defend it in court. They sometimes file appeals and then, ah, magically, as soon as an election is over, then they are willing to release the records. And so people are all irate, are very irate about how municipalities engage in these ridiculous lawsuits and then end up paying fees because they make frivolous arguments.”
Other side of the argument
According to New Jersey Monitor, John Donnadio, executive director of the New Jersey Association of Counties, said his group supports the provision to curb commercial requests because record custodians have been “inundated,” as well as the push to change fee-shifting because local governments face sizable attorney fees.
According to the New Jersey Legislature’s website, all four bills have been referred to the Assembly Oversight, Reform, and Federal Relations Committee. Per New Jersey Monitor, Assemblyman Danielsen is chair of this committee. As yet, there has been no timeline for the final passage of the four bills.
John Paff, the New Jersey Libertarian Party’s Open Government Advocacy Project representative, told New Jersey Monitor, “The bills on balance are essentially an eclipse on sunshine.”
In New Jersey, the Open Public Records Act is known as part of the Sunshine Laws.
