Bill that will decimate public access to NJ government records moves forward for approval

A bill that would gut access to public records is set be voted on by both chambers of the New Jersey Legislature on Monday after it cleared the Assembly Appropriations Committee on Friday afternoon.

The state Senate Budget Committee advanced the bill on Thursday after a sequel of sorts to the bill's first hearing at a March meeting played out in a Trenton committee room: Advocates delivered hours of testimony against the bill, multiple lawmakers expressed opposition to it and ultimately the same outcome — the bill advanced.

When draft amendments were posted by the Legislature late Friday afternoon, they differed from the version made available to the press before the state Senate committee hearing on Thursday.

The most recent version available on the Legislature's website removes the presumption of access clause at the beginning of the New Jersey Open Public Records Act, which notes that “government records shall be readily accessible.”

“It’s crazy to me that they pulled this bill in March to claim they would fix it, only to end up with a process and a bill that’s much worse,” CJ Griffin, an attorney and prominent OPRA advocate, said. “The reprint today contains new amendments which were not even before the committee, including gutting Section 1 of OPRA, which required agencies and courts to construe OPRA in favor of access. There’s no explanation for deleting that other than an extreme hostility toward transparency.”

According to the Senate Majority Office, that's not the case, however. Spokesperson Richard McGrath said that section "will remain intact as part of the OPRA law.”

“That section is not being removed from the OPRA law, just from the bill," McGrath said. "It came out of the legislation because that section of the law is no longer being amended."

The implementation of the bill will now cost $10 million instead of $8 million.

What happened at the Assembly hearing?

Friday's hearing before the Assembly Appropriations Committee was no different from Thursday's in the state Senate. Dozens of advocates pointed to flaws with the bill. They questioned lawmakers’ motives and called for a more collaborative discussion to further amend the bill.

“Even with limited time to review the amendments, however, we can see that many problematic provisions remain — sort of wolves in sheep’s clothing,” said Evelyn Murphy, president of the League of Women Voters for Monmouth County. “You changed the language, but you did not address the core issues.”

Marleina Ubel, an analyst at the New Jersey Policy Perspective, said that the amendments do “little to address failings of the bill” and “place the onus of the burden on the public rather than on the agency.”

“New Jersey is already a disgraceful 48th in the nation for public access laws and will no doubt slip even further,” she said. “Fewer than 37% know their congressional representative. How many people know the names and the titles and all of the things we are going to be asking them to do to get access to these records?”

Representatives from agency organizations such as the League of Municipalities, New Jersey Conference of Mayors and New Jersey Association of Counties were in support of the bill, though they said that if it were up to them, they would have implemented even more restrictions on access to public records.

“We don’t think this bill goes far enough but this is a legislative process. You don’t get everything you wanted all the time,” said William Caruso, legislative counsel for the New Jersey Conference of Mayors.

Many had hoped for lightning to strike twice — and wanted the bill to again be pulled from consideration at the last moment, as had happened in March.

Instead, the meeting — which featured just the OPRA bill — went on as planned and ultimately the bill advanced with a final tally of 8-1 with Assemblyman Jay Webber abstaining.

Our view: Amended OPRA bill an absolute sham. Gov. Murphy, veto this affront to democracy

What would the 'reform' do to roll back OPRA?

Since the bill was first heard in committee in March, Republicans in both chambers have joined as sponsors — state Sen. Anthony Bucco in the upper chamber and Assemblywoman Victoria Flynn in the lower chamber.

The updated bill includes the renewed ability to make anonymous requests and the removal of exemptions for call and email logs and digital calendars.

It also implements stricter requirements on how to request things like texts and emails including specific accounts, times, topics and titles.

There are modifications to the provision limiting access to metadata to allow for access only to the "portion that identifies authorship, identity of editor, and time of change."

Language restricting data brokers and commercial entities that resell information obtained through OPRA was removed.

Among the parts that remain mostly intact include one of the most controversial, known as the fee-shifting provision. This provision previously required public record custodians that had not, according to a judge, properly provided records to pay the requesters' attorney fees.

The bill initially changed that to say winners of OPRA lawsuits "may" be entitled to legal fees if the public agency is found to have knowingly violated the law or unreasonably denied access. In its amended form, the bill still eliminates the attorney fee requirement but does allow for judges to decide that fees are warranted if the denial was unreasonable, if the agency “acted in bad faith, or knowingly and willfully violated” the law.

The amendments also include language that would allow for a court to “issue a protective order limiting the number and scope of requests the requester may make” if they “sought records with the intent to substantially interrupt the performance of government function.”

The legislation was first enacted in 2002 and requires local, county and state government entities to provide the public with access to government records in New Jersey.

This bill is slated for a full state Senate vote on Monday and is expected to appear before the full Assembly on Monday as well.

Katie Sobko covers the New Jersey Statehouse. Email: sobko@northjersey.com

This article originally appeared on NorthJersey.com: NJ OPRA reform bill gutting public records access advances