Sarlo’s OPRA stink bomb needs to be defused | Editorial

Just when taxpayers got used to the notion that public records actually belong to the public, our most powerful lawmakers have decided that it’s time to choke off access.

In a state notorious for government corruption and poor transparency, New Jersey’s Legislature will attempt to gut the venerable but dated Open Public Records Act, which is a ludicrous idea if you only consider the treacheries that were revealed by the OPRA law.

It is a cortex-snapping litany: Because of OPRA, reporters were able to shake free internal emails and other documents that exposed the causes of the meltdown of our veterans’ homes during the pandemic. Because of OPRA, law enforcement was fundamentally changed in our state, after records showed major disparities in how police use excessive force. Because of OPRA, inspection records for a group home led to a state investigation of the alleged abuse of a severely disabled woman. Because of OPRA, the Office of the Medical Examiner was found to be a dysfunctional joke — bungling crime investigations, mangling corpses, and misplacing body parts.

These are just a few recent examples of how one news organization – this news organization – uses OPRA. But it is used every day by reporters, activists, and citizens who seek information from various departments and agencies about taxpayer funds, pollution levels, public safety, and countless other government functions that would otherwise never see the light of day.

Now that transparency is imperiled, because a bill that aims to overhaul the 22-year-old OPRA law puts severe constraints on anyone seeking such information, which validates a level of distrust in government that is quintessentially New Jersey.

In other words, if there has ever been a time to share your opinion with your local state representatives, this is it, with hearings scheduled Monday morning for both chambers.

“It’s Sunshine Week, and to schedule a bill of this magnitude on such short notice – in two committees at the same time – is a message to the public that says, ‘Don’t bother us,’” said former Senate Majority Leader Loretta Weinberg, whose attempts to reform OPRA in the past fell short. “It’s a disgrace. People need to make calls.”

While no one disputes that OPRA needs an update – particularly to quell data mining by retailers — the bill (S-2930) authored by Sen. Paul Sarlo (D-Bergen) is a contemptible assault on government transparency.

Among its provisions: 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 Sarlo’s 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 the government wrongly denies access to a public record, the petitioner might still be stuck with the legal tab. That will have a chilling effect on attorneys willing to take such a case.

Worse, all provisions are retroactive — including the fee shift change, so attorneys already arguing cases on the assumption that they’d be paid after a successful court challenge can still be denied payment.

Sarlo’s bill even allows agencies to deny requests that it believes could lead to “harassment,” and bans metadata, which is the encrypted information on an electronic file that shows its source.

Just like that, the public’s right to know is not American scripture, but a quixotic dream of the past.

Nicole Rodriguez, the president of NJ Policy Perspective, put it this way: “When documents are created by public officials on public salaries with the public’s trust,” she said, “there’s no good reason to restrict public access to that information. Yet that’s exactly what this bill does.”

Sarlo claims he consulted all stakeholders, but there is no evidence he listened to any besides the League of Municipalities, which has long sought to reduce the relentless torrent of commercial requests for records – a legitimate concern that demands a solution, but not one that involves strangling public access. The New Jersey Press Association, for one, said Sarlo didn’t keep his word to share a copy of the bill before it was posted, and called the process “a disservice to the public.”

Sarlo didn’t even bother to consult Marc Pfeiffer of the Rutgers-Bloustein School of Planning and Public Policy, who ran the GRC when the law was enacted in 2002. Pfeiffer’s take is blunt: “Bludgeons create a mess, and rapiers are surgical. This bill uses a bludgeon to try to deal with outliers that exist within OPRA.”

The reason for this overkill: Our elected officials seek to give government departments and agencies more freedom to stonewall public requests for information, which makes a state with a lousy reputation for transparency even more opaque.

Weinberg calls it “a real gut punch,” adding that “Democrats should be about protecting democracy – or so I’ve been told. Reducing a citizen’s access to their own government is not a way to do that.”

Apparently, our Legislature think it’s New Jersey’s way, but taxpayers don’t have to agree. Make the call.

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