NJ Senate advances legislation that could decimate public access to government documents

The New Jersey state Senate Budget Committee advanced a bill that will gut access to public records for the second time in two months despite considerable opposition from advocates.

Introduced in early March, the bill — sponsored by state Sen. Paul Sarlo, D-Bergen, the committee’s chairman – was met again with a vocal opposition on Thursday in Trenton.

Sarlo introduced the bill by saying that legislative officials had met with various working groups but he did acknowledge that “all amendments and all recommendations were not accepted as part of a compromise.”

He said that there are also suggestions from the Assembly and the governor’s office that have been included.

'Deeply flawed' legislation moves forward — despite considerable public opposition

Advocates such as media attorney Thomas Cafferty described the updated bill as “deeply flawed” and said it would, if passed, “thwart public access.” He spoke specifically about the provision related to attorney fees, which the bill would not require agencies to pay in the event a denial is taken to court.

“It should not be lost that the current structure of attorney fees requires the court finds the denial access was wrongful and the fees are reasonable,” he said. “There is judicial oversight as it exists now.”

Attorney CJ Griffin, who has represented NorthJersey.com and The Record and various other media organizations in successful OPRA cases dozens of times, pointed out records being requested “belong to the public.”

“Our taxpayers pay for all those records to be created. We deserve access to those records,” she said.

While Sarlo had mentioned New Jersey Citizen Action as an organization involved in the discussions on the bill since it first appeared, executive director Dena Mottola Jaborska “objected to the characterization that we helped shape this bill.”

“The concerns around commercial use and privacy are really just excuses for what this bill really does — which ... actually gets in the way of public participation in our democracy by making it harder to request documents,” she said. “The concerns we have and what we think this bill now does is targets the public. It targets people who need to be using OPRA to keep democracy healthy.”

But not everyone was opposed to the bill. Michael Cerra, executive director of the League of Municipalities, was joined on a panel by mayors from Deptford, Plainfield and Bethlehem Township.

He said that if the League had written the bill it “would go even further” but that it was a “very good bill.”

Cerra also spoke out against a poll conducted by FDU which found that 81% of respondents were opposed to the bill.

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

Three senators — Testa, O'Scanlon and Zwicker — vote no

While the bill saw more than three hours of testimony, it ultimately cleared committee with a vote of 10-3.

State Sen. Michael Testa and state Sen. Declan O’Scanlan, both Republicans, and state Sen. Andrew Zwicker, an Democrat, all voted against the bill.

Testa said that during his time in office he’s learned that the public is “starving for more transparency and accountability in government” and the “public perception” is that this bill restricts those things.

O’Scanlon and Zwicker also said that they recognize that OPRA needs to be modernized in some way but that this bill is “not there yet.”

Zwicker said after the meeting that the strong opposition from groups that use OPRA to “do their work and hold government accountable was very convincing.”

He went on to say that there are things that were mentioned during testimony that he would need to look into further especially the idea that a government agency can sue a requester and that the terms of that “vague.”

As had happened in March, state Sen. Gordon Johnson, D-Bergen, was not on hand and a placard displaying the name of a different lawmaker was displayed in Johnson's place. This time it was state Sen. Joseph Cryan. Similarly, state Sen. Robert Singer’s placard sat in place of state Sen. Doug Steinhardt.

Both Singer and Cryan voted in favor of the bill but did not appear at the hearing that lasted for more than three hours.

When reached by phone on Wednesday, Senate President Nick Scutari said that the amendments “speak for themselves” and “there were a lot of amendments made on behalf of the lawyers and advocates so I think it’s a significant opportunity to help maintain municipal level costs.”

Scutari voted during the committee meeting in place of state Sen. Patrick Diegnan, who according to the Senate Majority Office was unable to attend due to a death in the family.

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.

What would the legislation do to curtail OPRA?

While some amendments were provided to The Record and other media outlets earlier in the week, a second set of amendments to the bill became available shortly after the meetings scheduled 10 a.m. start time and had still not been posted on the legislative website even after the meeting ended.

The version of the bill that the committee voted on after about three hours testimony 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 requests 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 also removed.

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

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.”

While the proposed legislation was pulled from consideration before the Assembly Appropriations Committee just minutes before the panel was to convene in March, it is expected to appear there Friday afternoon.

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.

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

This article originally appeared on NorthJersey.com: OPRA bill moves forward in state senate