Bill To Change NJ Public Records Access Law Up For Votes From Hoboken, Jersey City Reps

HUDSON COUNTY, NJ — Just because a state has a law about open records, doesn't mean it's easy for the public or journalists to get the information. For instance, New Jersey's Open Public Records Act currently requires governments to give people information seven days after it's requested — but there are ways governments can hesitate, sometimes forcing the requesters into pricy court battles.

Now, experts say that the state law that helps the public get information may be further weakened by proposed changes in the state legislature. However, several New Jersey towns say that answering requests from the public has become expensive and labor intensive.

They're supporting proposed changes to the law, which have been "fast tracked" in the state legislature — catching critics off guard.

Groups including the ACLU say the "fast tracked" changes in New Jersey government will make OPRA even weaker.

Further adding to the controversy, legislators who questioned the changes have been "subbed out" of the committee that was to vote on them, with other legislators "subbed in" — including two Hudson County legislators.

'Subbed In'

Among them was newly elected Assemblyman John Allen from Hudson County, a Hoboken resident and former chief of staff to Mayor Ravi Bhalla, and Barbara McCann-Stamato, a Jersey City resident:

Allen's spokesperson, Rob Horowitz, was asked for a comment Tuesday on the "subbing" process and how he feels about the proposed changes, as they stand.

Horowitz responded, "Assemblyman Allen was asked on Friday by the Office of Assembly Majority to serve as a substitute at the State and Local Government committee hearing because otherwise they wouldn't have a quorum ... He does believe that the Open Records Act needs reforms and modernization. As a result, he voted that the bill be released out of committee with the understanding that there will be significant additional amendments before it comes to the floor—amendments will address the concerns raised by open government activists."

He added, "These are concerns that he shares. As the process moves forward, he will be advocating for significant improvements to the legislation and consulting local open government activists. If the bill comes to the Assembly floor in its current form, Assemblyman Allen will vote no."

Good And Bad, Critics Say

The law would make sweeping changes to the New Jersey Open Public Records Act, but also creates an appeal process for denials.

Some critics of the current process allege that it needs to be revamped, with multiple New Jersey towns saying that responding to requests can be too expensive, including for the labor.

Supporters of OPRA acknowledge that it could use an update – particularly the clauses that allow corporate businesses to request records that are used to pad their databases and make them money. But the law is a crucial safeguard for democracy, they add, arguing that gutting it would be devastating to the public's "right to know” what their government is doing in their names.

Journalists, who have used public access laws to uncover scandals — such as the infamous "Bridgegate" in New Jersey — say the current changes would make it easier for a government to deny requests from the public.

According to an editorial from NJ Advance Media:

“Access to email and call logs would largely be exempt, as requests for government-related emails would need to include a ‘specific subject matter’ and ‘discrete and limited time period.’ The request would also have to name a specific government employee whose email can be searched, not merely a department. But the greatest change could be what happens when an OPRA request is denied, which is often. Currently, the government agency has to cover a legal fee if a requester successfully challenges a denial. But [the] bill leaves this longstanding fee-shifting provision up to the discretion of a judge who hears the case or the Government Records Council (GRC). So even [if] the government wrongly denies access to a public record, the petitioner might still be stuck with the legal tab.”

In a position paper opposing the bill, the New Jersey Press Association (NJPA) said that it would “eviscerate” the state’s OPRA law.

“Many records that are currently available to the public will be cloaked in secrecy or otherwise made more difficult to obtain if the bill is enacted – and, wrongful denials will be impossible for many to challenge,” the NJPA charged.

Other changes would include:

• “Draft material” would no longer be available, including notes generated and used to prepare final reports, documents, or records
• Metadata would no longer be available
• Government agencies would be permitted to direct the requestor to the agency’s website without requiring the agency to precisely identify where, on that website, responsive documents are located

On Monday, the Assembly State and Local Government Committee voted 5-2 to advance that chamber’s version of the proposed law: A-4045. The bill was sponsored by Joe Danielsen, a Democrat from the state’s 17th District.

Pundits say the bill is expected to see several changes before it sees a vote in the full Assembly.

An identical version of the bill, S-2930, received a hearing on Monday in the Senate Budget and Appropriations Committee, where its Democratic sponsor, Paul Sarlo (NJ-36), serves as committee chair.

Gov. Phil Murphy has not addressed the proposal publicly, and his spokesperson declined to comment on whether Murphy would sign the bill if it reaches his desk, The New York Times reported.

There have been cheers for the bills, too.

The bill’s supporters include the New Jersey State League of Municipalities, which said it would address many of the issues that towns and cities have been experiencing since the inception of OPRA.

According to the group, the bill would give privacy protections to residents doing public business, address “burdensome commercial requests,” cut down on attorney fees and start a difficult conversation about how police records should be considered under OPRA.

“The League thanks Assemblyman Joe Danielsen and Senator Paul Sarlo for sponsoring these bills,” spokespeople stated on Friday. “We are strongly in favor of these proposed changes and encourage you to reach out to your legislator to express municipal support for these bills.”

In contrast, a large swell of criticism has arisen among elected officials and social justice advocates across New Jersey.

Two Democratic candidates for the U.S. Senate – Tammy Murphy and Andy Kim – oppose the bill. So do two Democratic gubernatorial candidates (Steve Fulop and Steve Sweeney), the New Jersey Globe reported.

U.S. Rep. Mikie Sherrill (NJ-11) also put in a good word for OPRA this week.

"During the pandemic, OPRA served a critical purpose in exposing abuses in our veterans homes," the congresswoman wrote. "Those reports led to important federal legislation to address COVID preparedness. I am opposed to any gutting of OPRA."

State Assemblyman Brian Bergen, a Republican, called the bill "pure garbage."

"It follows the Elections Transparency Act as a deliberate effort to return NJ to its heyday of corruption," Bergen said.

Brendan Gill, a member of the Essex County Board of Commissioners, said the proposed law doesn't meet the standards of transparency that residents of the state deserve.

"The public has a right to know what their government does, and we must not sacrifice that right," Gill said. "I urge the members of the New Jersey Legislature to vote 'no.'"

Other government officials have said that the state’s OPRA law is essential to their own jobs safeguarding the public.

“We rely on tips from residents to do our important work,” Acting State Comptroller Kevin Walsh said, pointing out that his office recently issued a report about OPRA and delays by the GRC.

“A bill that would make it harder for residents to file OPRA requests will lead to more fraud, waste and abuse and impede our ability to do our work,” Walsh added.

Advocacy group Newark Communities For Accountable Policing said that strong public records access is critical to the effort to watchdog against law enforcement abuse.

"Let us not go backwards on police reform and accountability by allowing the gutting of this bedrock item of police transparency," the group urged.

Ed Potosnak, executive director of the New Jersey League of Conservation Voters, said the group "strongly opposes" any legislation that would remove key elements and protections in the Open Public Records Act.

"This bill, as it currently stands, would not only impede public oversight and government accountability, but it would hinder the work of community groups, environmental stewards, and nonprofits like ours," Potosnak said.

The bills have also seen pushback from labor leaders. On Monday, a coalition of unions reached out to Murphy and Legislative leaders to express their concerns about the proposed changes. And there’s no reason to rush the debate through Trenton’s hallways, they said:

“There is no reason for such limited time for review and comment unless the intention is to restrict public input. Scheduling simultaneous hearings in both Assembly and Senate on the same day further underlines that point.”

The letter was signed by unions including New Jersey State AFL-CIO, 1199SEIU United Healthcare Workers East, 32BJ SEIU, AFSCME New Jersey Council 63, ATU NJ State Joint Council, Communications Workers of America, District 1, Health Professionals & Allied Employees HPAE, Hudson County Central Labor Council, International Federation of Professional and Technical Engineers, IFPTE Atlantic Council, IFPTE Local 196, IFPTE Local 194, The NewsGuild of New York, Retail, Wholesale and Department Store Union (RWDSU), Rutgers AAUP-AFT, Rutgers Adjunct Union, PTLFC-AAUP-AFT, United Council of Academics at NJIT, AAUP-AFT, and United Steelworkers Local 4-200.

“Democracy dies in the dark,” said Dennis Trainor, Vice President for CWA District 1.

“And at a pivotal time in history – in which our very democracy is under very real threats – our government should not be undermining the right of the people to vital information,” he added.

“It’s extraordinarily ironic that the Open Public Records Act is supposed to be all about transparency, yet this whole process has kept people in the dark,” agreed Fran Ehret, the union’s New Jersey state director.

“The legislation revising OPRA was crafted behind closed doors,” Ehret said. “And then they sprung it on us – giving no ability for review by those affected, let alone public input before being fast-tracked.”

• See Related: NJ Activists Blast 'Fast-Tracking' Of Bill That Would Gut OPRA Access

Other opposition has come from the New Jersey Libertarian Party, which had this to say about the proposed bills:

“The Open Public Records Act is what enables private citizens and news organizations to pull back the veil of secrecy from government operations. The mere possibility that records of their actions will be requested and scrutinized is a great aid in ‘keeping them honest.’ Bill S2930, which has been fast-tracked in the state Senate, would gut OPRA and must be stopped!”

Danielsen has since defended the legislative push, saying that news coverage has mischaracterized the changes in the bill.

"Over half of them are increasing, creating or improving access to documents," the assemblyman told a New Jersey Monitor reporter. "None of you have the courage to print that, right?"

Learn more about advertising on Patch here. Find out how to post announcements or events to your local Patch site.