This article is republished from the New Jersey Monitor, with permission.

By Dana DiFilippo, New Jersey Monitor

May 1, 2024

When New Jersey lawmakers passed a law in 2002 protecting the public’s access to government records, it was celebrated as a win for transparency and accountability.

Two decades later, an “original sin” in the law — legislators exempting their own doings from disclosure — has laid the groundwork for local public officials and others to roll back records access, as they now are working to do, good government advocates say.

The legislative exemption drove mayors and other public officials to say “‘well, you got exempted, why am I not exempted?’ And they’ve been on a quest, I think really ever since, to let themselves off the hook the way that the Legislature let themselves off the hook,” said Micah Rasmussen, who heads Rider University’s Rebovich Institute for New Jersey Politics.

The institute hosted a panel discussion Tuesday night on a bill moving through the Statehouse that would add almost 30 pages of new restrictions to the Open Public Records Act.

The New Jersey Society of Professional Journalists sponsored the event, which featured panelists Rasmussen, a municipal clerk, an attorney who specializes in public records access, journalists, and a former government spokesman. Sen. Paul Sarlo (D-Bergen), one of the bill’s prime sponsors, declined an invitation to participate, organizers said.

The bill’s sponsors say the law lags far behind the technological advances that have expanded information access, raising privacy concerns. They also say many records custodians have been harassed by repeat requesters, overwhelmed by commercial requesters such as data miners, and dragged into costly court battles over record denials.

But transparency advocates have fought the bill since Sarlo introduced it in March, warning it would gut the 2002 law. They testified for hours against it at several legislative hearings, only to see lawmakers advance it anyway. Outcry intensified, driving the bill’s sponsors to pull it from a scheduled vote for amendments.

State Sen. Anthony M. Bucco (R-25th Dist.) in  Morristown, October, 2023. Photo by Kevin Coughlin

Sarlo and Sen. Anthony Bucco (R-Morris), the bill’s other sponsor in that chamber, declined to answer the New Jersey Monitor’s questions Wednesday about when the bill might return for a vote and how it’s being amended.

Assembly members Joe Danielsen (D-Somerset), Reginald Atkins (D-Union), and Vicky Flynn (R-Monmouth), sponsors of the bill in their chamber, said they didn’t know, although Atkins hopes it’ll see a vote “maybe sometime this month.” Legislators will break for the summer at the end of June.

The bill’s foes said they won’t rest until it’s dead — but fear lawmakers are working behind closed doors to shore up support for the bill and will push it through to the governor’s desk even though a recent poll showed most voters oppose it. Gov. Phil Murphy said on WBGO in March that he’s “open-minded” to tweaking OPRA, citing privacy and cost concerns related to the volume of commercial requests.

“This is I think, 22 years old. So the world we live in, in terms of privacy, in particular, with all the technology we have in the world has changed dramatically,” Murphy said.

He acknowledged the backlash, but said of the bill’s sponsors: “Their heart is in the right place. There may be a real disagreement here and I get that, but I don’t think this is — I haven’t seen anyone with nefarious behavior here.”

Advocates regard the bill as just the latest in a series of things that have made government in New Jersey more opaque and less accountable — a law passed last year that critics say weakened the state Election Law Enforcement Commission, a 2020 statute called Daniel’s Law that shields judges’ and other public officials’ home addresses from disclosure, and a group’s recent call for restrictions on the state Comptroller’s office, which investigates public misconduct, fraud, and abuse.

At the panel discussion Tuesday, speakers said many legislators have a skewed view of OPRA, because they’re current or former local elected officials or attorneys who hold public contracts or represent towns in court battles over records, meaning they have a conflict of interest on the issue.

“This is all part of a coordinated effort by local government, whether it’s counties or towns, who don’t like transparency and don’t like what it’s revealing,” said panelist CJ Griffin, an attorney who fights public records denials in court.

Legislators are ignoring their constituents’ interests, she added, pointing to the Fairleigh Dickinson University’s recent poll and the outcry at legislative hearings.

“No one likes secrecy, whether you’re a MAGA Republican or a Bernie fan,” Griffin said.

Panelists especially objected to a provision in the bill that would weaken the current law’s fee-shifting provision in court battles over denied records, which allows journalists and citizen watchdogs to recover legal fees if they prevail. Without that, neither can afford to sue to challenge denials — so records won’t get released, said Walt Kane, lead investigative reporter at News 12-NJ.

“The average citizen who wants to use OPRA is not going to pay an attorney, by the way,” Kane said. “They will just give up.”

Panelist Charlie Kratovil is a New Brunswick-based journalist who has waged many court fights for public records. He suspects several recent court rulings siding against local governments in records disputes motivated legislators to act.

“Some of these items in the bill are specifically meant to overturn well-reasoned court rulings where judges looked at the cases, looked at the facts, looked at what the custodians were doing, what was being requested, and came down on the side of transparency, and now we’re seeing the Legislature trying to sort of undo what the judiciary has done,” Kratovil said.

Flynn acknowledged as much.

“Why are we addressing so much all at once? There’s been a lot of court decisions that have come into play, and GRC (Government Records Council, which adjudicates records complaints) decisions from the moment OPRA was enacted until now, and therefore there are a lot of examples that need to be addressed and cleaned up,” Flynn said.

Flynn is an attorney who has represented local governments in records disputes. Some have faced “crushing costs” from such battles, she said.

“I’m all for government transparency, and I’m a proponent of people putting things up online. But I have a problem when it leads to litigation,” she said.

New Jersey Monitor is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. New Jersey Monitor maintains editorial independence. Contact Editor Terrence T. McDonald for questions: [email protected]. Follow New Jersey Monitor on Facebook and Twitter.

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