NJ state Senate passes bill that will dismantle public access to government records, data

3-minute read

Legislation that would gut public access to government records and data was passed by the state Senate on Monday. It was to be considered by the Assembly later Monday afternoon.

State Senate President Nick Scutari said after the Senate’s voting session that the legislation — billed as a reform of the New Jersey Open Public Records Act — was an effort to save taxpayers money.

While the bill was under discussion last week in the Senate budget committee, lawmakers said it was focused on limiting data brokering and commercial access. Provisions dealing with regulation of data brokers, however, were removed from the final version of the bill.

Scutari also said the Legislature — controlled by Democrats — has been exempt since the bill was introduced and that the legislation’s sponsors are listening to the concerns of small-town New Jersey mayors.

“This isn’t about us. This is what I heard on my first day as Senate president at the League of Municipalities when I wasn’t even sworn in yet,” he said.

There were 21 votes in favor and 10 votes against. Nine state senators did not vote, including Sens. Anthony Bucco, James Holzapfel and Shirley Turner, who were not present.

One lawmaker noted after the session that not voting is the equivalent of a no but shows respect to the effort of the sponsors.

State Sen. Andrew Zwicker voted against the bill in committee both in March and last week. He said after the voting session, “From everything I understand this will make it more difficult [to get records], and that is my concern.

“I think we made it better in the amendments, but it didn’t go far enough for me to vote for the bill,” Zwicker said.

Will government records ‘be readily available?’

The bill cleared committee in both chambers on Thursday and Friday after hours of testimony in opposition from advocates.

The proposed law initially cleared committee in the upper chamber in March but was pulled from consideration in an Assembly committee that same week just minutes before it was set to start.

There were no such delays this month, though, and while there were votes against the bill in each committee — three in the state Senate and one in the Assembly — it ultimately moved forward.

The most recent version of the bill removes the presumption of access clause at the beginning of the OPRA statute, which notes that “government records shall be readily accessible,” and the Senate Majority Office 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,” spokesperson Richard McGrath said. “It came out of the legislation because that section of the law is no longer being amended.”

While advocates from groups like the ACLU, New Jersey Working Families and New Jersey Citizen Action have been outspokenly opposed to the bill since it was first introduced in March, not everyone thinks it’s a bad bill.

Representatives from organizations including the League of Municipalities, New Jersey School Boards Association and New Jersey Association of Counties have been supported the legislation. Some spokesmen for those organizations — including the league’s executive director, Michael Cerra — said they would have liked the legislation to go even further to restrict public access to government records and data.

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.

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

What will the legislation do to gut OPRA?

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.

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.

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