Assembly panel moves public records bill in near-unanimous vote despite ‘grave concern’

Friday's vote by the Assembly's budget committee sets up the controversial bill for potential passage by the Legislature on Monday. (Dana DiFilippo | New Jersey Monitor)

A bill that would defang the Open Public Records Act’s main enforcement mechanism advanced a key committee Friday even as numerous members expressed deep concerns about the bill, setting the measure up for potential passage by the Legislature on Monday.

Multiple members of the Assembly’s budget committee expressed hesitation before voting yes, including one member who worried it would make it harder for a constituent to find out whether group homes for a child with special needs had a history of abuse. 

“From what I’ve heard today and what I’ve heard previously, my grave concern is this: is that she might have to have multiple attempts at actually inquiring for her child, in which case that would be curtailed. She herself can’t afford to hire a lawyer at $500 an hour, so her choices are going to be curtailed,” Assemblywoman Pamela Lampitt (D-Camden) said before voting yes.

The committee passed the bill 8-1, with the no vote from Assemblyman Bob Auth (R-Bergen) and an abstention from Assemblyman Jay Webber (R-Morris).

The legislation would end mandatory fee-shifting, which has become the law’s primary enforcement mechanism. The Open Public Records Act requires governments to pay requestors’ attorney’s fees if they prove in court their records request was improperly denied, and many attorneys take on records disputes pro bono as a result.

The bill would also create new exemptions for some technological information, require custodians to redact more personal information from government records, and allow them to deny requests for records in their possession if they were created by a separate agency.

Critics have assailed the bill as an assault on transparency, with particular concern to provisions on fee shifting and others that would allow governments to sue requestors they believe are seeking to interrupt government processes and make requestors responsible for proving fees custodians can charge on certain complex requests are unreasonable.

“The things in this bill don’t address the problem that you have. They will limit transparency. They will hurt citizens, and they will put us in a very dark place, and voters can and should be outraged,” said Maura Collinsgru, health policy advocate at New Jersey Citizen Action.

Local officials have urged the legislation’s passage, alleging local clerks’ offices have been inundated by waves of commercial requests, though the bill does little to limit those.

“Commercial enterprises have abused the mechanism for commercial purposes. Their actions have caused businesses themself little to nothing, but the public entity expends resources in response efforts, thereby transferring OPRA into a commercial tool it was never intended to become,” said Lori Buckelew, assistant executive director of the League of Municipalities.

One clerk who testified in favor of the bill said Eastampton paid $13,000 in attorney’s fees over a request for a payroll record, a case she called a “distressing episode that underscores the challenges inherited in a public records managemen.”

“Although the document contained all of the requested information, it was labeled differently by our outsourced payroll company, leading to allegations of a denial of access to a payroll record,” said Eastampton Clerk Kim-Marie White.

Court records tell a different story. In the case, John Paff, chairman of the New Jersey Libertarian Party’s Open Government Advocacy Project, sought payroll records for a township police officer who was suspended with pay for several years.

Paff sought her payroll record and other information about the officer, including her length of service and date of separation. The records Eastampton provided to that portion of his request showed only her name, title, position, length of service, and base salary. They did not include any record of the officer’s payroll and did not make clear whether she was still suspended.

The township claimed it could not supply payroll records to any request because such records were in the custody of a third-party payroll vendor, but the judge ruled Eastampton could not skirt OPRA’s requirements by having someone else hold their records.

A Superior Court judge in 2020 ordered the officer to repay $321,942.17 she had received while suspended.

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