Ducking transparency: Open record reforms will undermine reporting

Caitlin Vogus Headshot

Deputy Director of Advocacy

A multi-wing government building capped with a gold rotunda

Lawmakers recently reconvened in the New Jersey State House, pictured here, for a lame-duck session. Hobbling the Open Public Records Act may be on the legislative agenda. New Jersey State House by Peter Miller is licensed under CC BY-NC-ND 2.0.

Journalists in New Jersey have long used the state’s public records law to shed light on everything from misspent taxpayer money and petty acts of political retribution to deadly uses of force by police. But a new plan to hobble New Jersey’s Open Public Records Act, or OPRA, threatens access to the public records that make this reporting possible.

Democratic lawmakers in New Jersey, meeting during the legislature’s lame duck session, reportedly are considering using the guise of “reforming” OPRA in order to gut it. While the proposed legislation isn’t public (never a good sign), it’s believed that the reforms will include measures that:

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  • Add exemptions to OPRA that allow additional records to be withheld from public disclosure. OPRA already has 27 exemptions.
  • Prevent records requesters from directly challenging denial of access in Superior Court. Instead, requesters will first have to appeal denials to the Government Records Council, which — according to the state’s own report — fails to quickly resolve records disputes.
  • Eliminate the requirement that a public agency that wrongfully denies access to a public record pay a requester’s legal fees if they have to hire a lawyer to win access to the records. This “fee-shifting” requirement encourages attorneys to take on legitimate OPRA cases and enforce the law, because they’re likely to be paid.

These changes will decrease transparency in New Jersey and undermine the public’s right to know — and journalists’ ability to expose — what their government officials are up to.

That’s why Freedom of the Press Foundation (FPF) joined more than 60 other organizations — led by the New Jersey Working Families Party, the ACLU of New Jersey, and League of Women Voters of New Jersey — in a letter urging the New Jersey legislature to stop its efforts to push through OPRA changes during the lame-duck session.

It’s disappointing but perhaps not surprising that lawmakers are trying to ram through changes to OPRA. Public records laws often reveal authorities’ politically unpopular decisions, embarrassing conduct, or even criminal wrongdoing. Of course, elected officials know it would be unpopular to criticize public records laws for being a thorn in their sides, so they rely on other reasons to justify trying to eviscerate them.

In New Jersey, some lawmakers have argued that commercial requesters are abusing OPRA to gather information at an unfairly high cost to taxpayers. Yet they haven’t offered specifics about just how much these allegedly “abusive” requests are costing. Given the state’s history of making ridiculous accusations about overly burdensome requests, it’s more than fair to ask lawmakers to justify their claims with some evidence.

It’s also not clear how the potential changes to OPRA that lawmakers are said to be considering would stop abusive requests from commercial entities or save the government money, other than by making it harder for all requesters to access records. Even if commercial requesters are costing the state money, that’s no reason to limit access and transparency for everyone. Lawmakers should also consider the money saved when journalists use public records to expose government waste, fraud, and abuse.

In addition, there are better solutions to burdensome commercial requests, like posting frequently requested records publicly online, improving technology used to maintain and search for records, or even charging commercial requesters (which should not include the press).

OPRA reforms that actually benefit the public wouldn’t have to be rushed through, behind the scenes, in a lame-duck session. If lawmakers are truly interested in improving the law, not weakening it, they should work openly and cooperatively with journalists, public interest groups, and members of the public to enact real reform in the next regular session. Otherwise, only secrecy is served.

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