“This is going to be OPRAed,” former state Health Commissioner Judith Persichilli said in a secretly recorded 2020 conversation, before nursing home deaths exploded into a scandal for Gov. Phil Murphy’s administration. “It will hit the light of day.”
She was referring to the Open Public Records Act, the preferred tool of government watchdogs. Now, top Democrats in the state Legislature are fast-tracking legislation to overhaul OPRA for the first time in more than two decades, giving local, county and state government more resources, time and leeway to fulfill records requests.
Transparency advocates are raising the alarm, saying the proposal would gut OPRA and make it harder for the press, activists and everyday citizens to shine light on government functions.
“I think this is such a backwards move for the state of New Jersey,” said former state Senate Majority Leader Loretta Weinberg, a longtime state lawmaker, now retired, who pushed to expand access to government records during her tenure. “I hope my former legislative colleagues will look very closely at this and refrain from voting for it.”
The bill (S2930) is supported by the New Jersey League of Municipalities, which lobbies on behalf of the state’s local governments in Trenton. Michael Cerra, the group’s executive director, said the bill addresses “concerns that local officials and records custodians have been bringing to the Legislature for a number of years” and “modernizes the act to take into account emerging technology.”
OPRA was enacted in 2002 when cell phones were novel and “The Matrix” still felt like speculative fiction. Since then, the universe of government records — text messages, spreadsheets, police body camera footage, an official’s Outlook calendar — has exploded.
So, too, has the volume of requests.
“Towns are getting crushed by these requests,” said state Senate Minority Leader Anthony Bucco, R- Morris, pointing to a growing industry of data brokers that collect everything from criminal records to dog licenses for various commercial purposes.
Supporters are also concerned about the personal information of private citizens, who often provide their social security or phone number to government agencies, expecting it will be kept safe.
Among many changes, the measure would make clearer what personal information should be protected in the state. It would also make “draft” documents off-limits, allow agencies to sue requesters they deem “harassing” and do away with a requirement that governments that lose lawsuits over records requests have to cover the requestor’s legal costs.
Critics say such provisions would take the teeth out of OPRA.
“The cases that involve grey areas of the law that need courts to weigh in on? Those will be nearly impossible to take because it will be too easy for an agency to evade fees by claiming their response was reasonable,” said CJ Griffin, a public records attorney who often represents news media and gadflies in government disputes.
“Despite OPRA telling them to err on the side of disclosure, they’ll all start erring on the side of secrecy because there won’t be any penalty for doing so,” Griffin said.
All this in the state that brought you Bridgegate. And ”Jersey Hustle.” Home to a senior U.S. senator accused of taking bribes of gold bars, a mayor charged with running his landscaping business from town hall and a local judge who told the cops arresting him on suspicion of drunken driving, “I’m a f—king judge.”
News organizations including NJ Advance Media have used OPRA to document how government contractors mishandled dead bodies, investigate boardwalk cheating at the Jersey Shore, probe deaths at nursing and veterans homes during the pandemic and conduct a statewide examination of police use of force, among other examples.
Marc Pfeiffer, a senior fellow at the Bloustein Local Government Research Center at Rutgers University who helped draft the current law in the early 2000s, said reform was “long overdue” but that the bill as written doesn’t solve many of OPRA’s shortcomings.
“While the bill creates some streamlining, it complicates many issues,” he said.
Pfeiffer said the current bill doesn’t address OPRA’s biggest problem: the Government Records Council. Created along with OPRA to play referee between citizens and their government in records fights, the GRC takes more than two years on average to settle a dispute, a 2022 report from the state comptroller found.
It’s common knowledge among records-requesters that if you want to win a records fight in New Jersey, you skip the GRC and go right to court.
“I can reasonably say that it has never been adequately funded with the personnel and financial resources that it needs to do the job that’s expected of it,” Pfeiffer said.
The measure allocates $8 million in funding, but doesn’t specify how it will be spent. Top Democrats in the state Legislature who sponsored the bill aren’t talking.
Sen. Paul Sarlo, D- Bergen, the Senate sponsor of the measure, did not return messages seeking comment.
“Send your questions to my office,” said Assemblyman Joe Danielsen, D- Somerset, the sponsor in the Assembly. “We’ll take a look at it.”
His office did not reply.
In a position paper circulated this week, the New Jersey Press Association — which lobbies in Trenton on behalf of news organizations, including NJ Advance Media — said it had been “assured” it would receive a copy of the bill to weigh in before it was introduced, but “unfortunately, that did not occur, despite multiple follow-up inquiries by NJPA.”
The bill is on the fast track in Trenton. Sarlo introduced it earlier this week and legislative leadership has already scheduled it for dual committee hearings on Monday at 10 a.m. That’s less time than it takes many agencies to fulfill an OPRA request.
“This, of course, means that many who want to testify before both the Senate and Assembly committees on this critical piece of legislation, will be impeded from doing so,” the NJPA said in its statement. “This entire process is a disservice to the public.”
Gov. Phil Murphy also declined to discuss the proposal’s details.
“No comment on a bill that’s not with us, but we are big proponents of transparency in government,” he said Thursday after an unrelated event in Asbury Park. “We’re also big pragmatic proponents of transparency.”
Murphy and his fellow Democrats who control the Legislature have taken heat from transparency advocates over suspending OPRA deadlines during the pandemic and last year enacting the “Elections Transparency Act” — a campaign finance measure that critics contended actually made elections less transparent.
A package of bills introduced last year proposing similar changes to OPRA met fierce opposition and never received a full vote.
John Donnadio, executive director of the New Jersey Association of Counties, another government lobbying group that supports the bill, said restricting public access to government records “was never our intention.”
“Our goal was to limit commercial requests that have inundated local officials,” Donnadio said. “I don’t think it impacts the average, everyday citizen who makes a request. I’d argue this makes it easier because they can access records online.”
Weinberg, the retired lawmaker, scoffed at the claim the bill as written was primarily meant to curb exploitation by commercial entities.
“For them to claim all they’re doing is correcting data mining,” she said, “I think they should read their own bill.”
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