Democrats and Republicans join forces with Governor, ignoring widespread opposition
BY LEV D. ZILBERMINTS
TRENTON – In what amounted to an attack on accountability and easy access to information, both houses of the New Jersey Legislature joined forces with Governor Phil Murphy to pass legislation that would render the Open Public Records Act ineffective.
“Local Talk” did extensive research on the Internet about the subject matter. The article that follows is based on information from at least six different sources.
Originally passed in 2002
Open Public Records Act (OPRA) was first passed in 2002. According to the March 11 issue of the New Jersey Monitor, Lori Bucklew of the New Jersey League of Municipalities was just one of a handful of people who testified in support of the bill amending OPRA, back in March. At the time, Ms. Bucklew said that privacy laws required an update to the Open Public Records Act.
“OPRA was enacted at a time when dial-up Internet was cutting edge, Google was in its infancy, and identity theft was your sibling borrowing your driver’s license to get into the college bar. Fast forward 20 years, and not a week goes by that you do not hear of a data breach and calls for protection of personal information. Under these bills, those protections are given,” Bucklew said during her testimony, New Jersey Monitor reported.
According to his statement, Governor Phil Murphy said, “The Open Public Records Act (“OPRA”) was enacted in 2002. In the last 22 years, the statute has not been the subject of any type of comprehensive update until now. Today’s world is very different than 2002, a time when the Internet was far less ubiquitous and there was vastly less access to individuals’ personal information. While case law on OPRA has evolved, it is also appropriate for our democratic branches of government to take a look at the statute, informed by how various provisions have played out in practice.”
Vote to pass
According to a May 14 article on njspotlightnews.org, “The senate voted without any debate and by a bare minimum 21-10 to pass the bill, with Democrats who control that house providing all but three ‘yes’ votes. Seven Republicans and three Democrats voted against the bill. Unlike the rest of the Senate session, the vote on the bill was not livestreamed, due reportedly to an error by the Office of Legislative Services.
Later, the Assembly also voted to amend OPRA by a 42-27 vote, with seven Republicans helping the Democrats pass the bill and nine Democrats voting ‘no.’” (Source: https://www.njspotlightnews.org/2024/05/radical-revision-nj-opra-public-records-law-would-make-much-harder-access-public-records/)
New Limitations to the Open Public Records Act
According to a June 5, 2024 njspotlightnews.org article, the changes to OPRA under the new law would include:
- Encouraging governments to put documents online so they are easily accessible and appropriating $10 million for that purpose. If people can’t find the information online, governments can charge them for providing a paper copy.
- New protections on personal information including restrictions on birth dates, email addresses and home addresses.
- No longer guaranteeing that people who win disputed records-requests in court will have their legal fees paid by the government agency.
- Enabling governments to sue people seeking information if they can prove the request amounts to harassment of substantially interrupts them from doing their jobs. Governments can also add “service charges” for filing requests under certain circumstances.
- Specifically identifying individuals when seeking their correspondence and limiting the search to a “reasonable” time frame.
- No longer requiring immediate access to budgets, bills, vouchers, contracts and public employee salary and overtime information if that information is more than two years old.
- Extending the seven – day deadline to provide records to as long as two weeks if redactions are required, or three weeks if the records are in storage.
(Source: https://www.njspotlightnews.org/2024/06/nj-gov-phil-murphy-signs-contentious-public-records-overhaul/)
How the law amending OPRA was fast-tracked
Back in March 2024, the Legislature held public hearings on the new law governing Open Public Records Act. As “Local Talk” reported in its March 20, 2024 issue, the decision to pull the bill from the agenda occurred only three days after both the Assembly and Senate held public hearings on the proposed OPRA amendments.
According to the May 14 njspotlightnews.org article, “Organizations representing the state’s municipalities and counties were the greatest proponents of the measure, which was fast-tracked in March, then resurrected last Thursday (May 9) and passed by two committees without drafts of the amended bill available to the public on the OLS website.
“Dozens of nonprofits, good-government groups and civil rights advocates, as well as journalism organizations and individuals, opposed it. A recent FDU Poll said that more than 81% of registered voters support the current law and oppose the public’s right to records.”
Statements by organizations and people in favor and against the amendments to OPRA
According to the May 14 njspotlightnews.org article, Senate President Nicholas Scutari (D-Union), speaking briefly to reporters after the vote, said the bill will result “in a savings of taxpayer dollars.” After final Assembly passage, Antoinette Miles, state director of the New Jersey Working Families Party, said the measure “is not a bill that modernizes OPRA, it is a bill that decimates OPRA.”
Sarah Fajardo, the American Civil Liberties Union (ACLU) of New Jersey Policy Director, said in her public statement, “The public opposition to S2930/A4045 was a powerful display of democracy at its best – advocates, stakeholders, and 81% of voters from across the ideological spectrum made it clear that New Jersey should be strengthening government transparency, not undermining it in backroom deals.
“It’s shameful that despite overwhelming concerns from their constituents, lawmakers fast-tracked, and the governor signed, a bill that severely restricts access to government records and limits the public’s ability to hold elected officials accountable. But we know that voters will have the last word at the ballot box next year – and maybe then Legislators will remember who they are meant to serve.”
Governor Phil Murphy issued a five-page statement explaining in detail why he signed the bills amending the Open Public Records Act.
According to the Governor’s statement, “Before I discuss the merits of the bill, I want to acknowledge that I know that this decision (to sign the bill) will disappoint many members of the advocacy community, including a number of social justice, labor, and environmental organizations, among others. I have heard the many objections to the bill directly, and I know that they were made in good faith and with good intentions. I also commend everyone who has engaged in this debate for making their voice heard, which is the foundation of our democratic system of government.
“Perhaps the most troubling concern that I have heard is that signing this bill will both enable corruption and erode trust in our democracy. … If I believed that this bill would enable corruption in any way, I would unhesitatingly veto it. … I take the concerns regarding corruption and trust in our democracy extremely seriously. However, my responsibility as Governor is to evaluate the bill on the merits, regardless of how it may be perceived,” Governor Murphy said in his statement.
Legal Challenges. Freedom of Information Act.
With the revisions to the Open Public Records Act now effective law, the question arises whether legal challenges will arise soon. Plausibly, a court case challenging the new law is just a matter of time. When such a case does occur, it will attract the attention of everyone who fought against amendments to the Open Public Records Act. Legal cases being lengthy business, it might take at least two or three years to reach first the New Jersey Supreme Court, and then the United States Supreme Court. How that turns out depends on how well the plaintiffs put their case together.
Since the Open Public Records Act is no longer effective, the public should consider the Freedom of Information Act to obtain information. FOIA, as it is called for short, is a federal law, the counterpart of the Open Public Records Act. And since federal law overrides state law, those who want the necessary information from New Jersey government, counties, police, etc., can use the Freedom of Information Act to obtain that information.
