NEW BRUNSWICK, NJ—It is now much harder for New Jerseyans to obtain public records from their local, county, and state government agencies after an emergency law passed in four days and signed by the Governor.
Among the most devastating blows to government transparency in recent memory were Assembly bill A-3849, and its companion bill in the State Senate, S-2302.
The bills took the teeth out of the state’s Open Public Records Act (OPRA), specifically the requirement that those in charge of government records must at least respond to a request within seven business days.
The Assembly bill was introduced on March 16, five days after the viral outbreak was declared a global pandemic. Initially it called for an extension of OPRA’s seven-day deadline to 21 days.
That same day, the Assembly’s Homeland Security and State Preparedness Committee unanimously passed it onto the full Assembly.
No members of the public spoke to the committee about the legislation, which passed out of committee mere hours after it was drafted.
However, the record reflects one supporter: the New Jersey School Boards Association, a lobbying group that represents the interests of school board members and is itself subject to OPRA.
It’s unclear when or how it happened, but after that committee vote, the legislation was amended to abandon the proposed 21-day window, and instead abolish the legal requirement to respond to records requests altogether during this and all future states of emergency.
According to the final language adopted into law, “the deadlines by which to respond to a request for, or grant or deny access to, a government record under [OPRA] shall not apply” during any emergency.
“However,… the custodian of a government record shall make a reasonable effort, as the circumstances permit, to respond to a request for access to a government record within seven business days or as soon as possible thereafter,” reads the neutered legislation.
The relaxation of the deadlines would be lifted only when Governor Phil Murphy’s state of emergency and his public health emergency is ended, but it would also apply to all future emergencies, even those that are declared by local governments.
Later that day, the Assembly agreed to treat it as emergency legislation and unanimously approved the bill a vote of 65-0 before the day was done.
On March 19, the State Senate held its meeting in the Assembly’s chambers to allow for physical distancing , and passed an identical bill by a vote of 34-0, without first referring it to any committee for a hearing.
The following day, Murphy signed the bill into law, effective immediately. Unlike some other bills he signed, there was no further release or statement with details on his intentions or what impacts the bill might have.
When questioned by New Brunswick Today about the law, and how it contrasts with his supposed support for members of the New Jersey press corps, Murphy emphasized the severity of the crisis, barely addressing the substance of the question.
“Let me say something which probably is apparent to you: We’re at war,” Murphy responded to this reporter at his March 21 daily briefing.
“We’re at war if that is not apparent already. Look at all the things we’re talking about today. There’s no need to panic but this is not a normal time.”
Murphy said it wasn’t anything personal against reporters, who often depend upon the OPRA law to force government agencies to produce records that would otherwise be kept secret from the public.
“We’re taking steps that we feel like we have to take and it’s nothing against the journalists, the media community or against journalists. Trust me, that’s not the point,” Murphy continued.
“We just have to deal with the reality of manpower, the ability to turn things around. This is, we’ve gone to a different place. So, there’s nothing personal. There’s no thematic association with that other than we’re at war with a virus.”
It was one of the first times during the crisis that Murphy used the highly-militarized language that he has come to embrace, frequently comparing the crisis to a war, and himself to famous wartime leaders like Winston Churchill.
“This is literally a war,” Murphy said in a controversial April 25 statement, prompting many to point out that a pandemic is not, in fact, literally a war.
Advocates for transparency found the altered OPRA law confusing, given that records clerks often respond to requests within the seven business days only to make a request of their own: for an extension for more time to put together a substantive response.
Many government agencies have been known to play games with those who request records, asking for extension after extension, only to come back with a final decision that the request was improper or that the records cannot be released. Still others can’t seem to meet their own self-imposed timelines, and need to be reminded repeatedly about outstanding requests.
Under OPRA, aggrieved requestors can always file civil litigation against the clerks if they failed to respond in a timely fashion.
Indeed, this reporter has successfully sued the City of New Brunswick, Rutgers University, and the New Brunswick Housing Authority to force the release of records that were being withheld in violation of OPRA.
“Those who frequently file OPRA requests know that agencies already frequently fail to comply with OPRA’s deadlines,” wrote CJ Griffin, an attorney who specializes in OPRA cases. “Frankly, many wonder why this bill was necessary in light of the fact that agencies already routinely take extensions.”
Griffin said the new law “evidences a very clear legislative intent that agencies should always comply with OPRA’s statutory seven-day deadline and that any ‘reasonableness’ arguments for a delay should be rejected unless there is a declared emergency.”
“We hope the courts and GRC will agree and put an end to agencies automatically granting themselves endless extensions.”
While Griffin may be optimistic about the post-pandemic prospects for public records requests, presently the right to obtain government records is not what it used to be, and nowhere is that more apparent than here in New Brunswick.
It’s been nearly three months since this news outlet requested emails from the New Brunswick Board of Education that could show how far back their discussions about selling a school to the notorious private developer New Brunswick Development Corporation (DEVCO).
Because we filed the request using OPRAmachine.com, a tool that simplifies filing records requests and publishes the responses online for all to see, the public can see the decline in transparency in the government’s responses.
On February 25, New Brunswick Board of Education’s Business Administrator Richard Jannarone responded to the request, stating: “Due to the volume of the documents generated in response to your request the Board requires additional time beyond the seven business days to respond,” before citing the part of OPRA that allows him to respond and request an extension.
“Your request requires an extension of time for 30 days until March 25th,
“It’s a lot of emails.” Jannarone explained when we asked him in person what was taking so long.
But, then the virus began to spread and take the lives of New Jerseyans, causing the Legislature and Governor Murphy to relax OPRA’s deadlines.
At their March 24 board meeting, conducted via telephone conference, Jannarone addressed questions about the OPRA requests from the public.
“Unfortunately, due to COVID-19 and all the staff working on the Chromebooks and feeding them lunches, no, I will not be able to fulfill that request tomorrow,” said Jannarone.
Now, the Board of Education is citing the new law as it continues to delay responding to the request.
On April 8, having received no further response from Jannarone, the author of this article inquired again as to when a response might be forthcoming.
Jannarone responded: “Due to the current disruptions to the District’s operations and closures from coronavirus, the District anticipates requiring an extension of time until April 30, 2020 to compile, review, and redact (if necessary) the potentially responsive records in accordance with New Jersey law.”
On April 30, Jannarone requested another extension to May 15, a move that placed the new deadline after the board’s controversial April 28 vote to authorize the sale of the school and the May 12 Board of Education election.
This reporter wasn’t the only journalist that has been unable to get his hands on records from the Board of Education amid the pandemic.
Juan Gonzalez, co-host of the news program Democracy Now!, also followed up on another long-overdue OPRA request that sought to find out the names of a secret committee appointed to review potential replacement sites for the school that the board was scheming to sell, and emails related to it.
“Obviously now the pandemic has sidelined all of that, being able to go into the office to get that information.”
Even now, more than a month later, the secret committee has made its recommendations, but no one has identified the members to the public, and both OPRA requests remain unfulfilled.
After that March 24 meeting, Rutgers University’s student newspaper penned an editorial slamming Jannarone and the Board of Ed for “using the coronavirus disease as a shield.”
“There is major hypocrisy on behalf of the Board here. The coronavirus situation was not attention-sapping enough for it to outright postpone the Lincoln Annex matter until a future date. But, when asked to release pertinent documents to the public via the Open Public Records Act (OPRA), the Board stated that it was impeded from doing so by coronavirus,” wrote the Daily Targum’s editorial board.
“What we have here is a Board of Education that is exploiting a pandemic to make a critical, damaging decision, cowardly hiding behind the pain, suffering and economic hardship endured by broader society.”
Editor’s Note: The author of this article has been a vocal opponent of the sale of the Lincoln Annex School since September.