TRENTON, NJ—Today, two different state legislative committees are poised to simultaneously consider a freshly-dropped pair of bills that would overhaul and undermine the state’s Open Public Records Act (OPRA).
The OPRA has been a critical tool for journalists to uncover corruption and inform the public using primary sources, but it is also used by all sorts of New Jersey citizens to investigate and learn about what their governments are doing.
Joseph Danielsen, one of two Assemblymen who represent New Brunswick in the state government, is the bill’s only sponsor in the New Jersey General Assembly. Among other fundamental changes to the landmark law, the bill would specifically allow governments to sue people who file requests, specifically to take away their rights to make further requests.
Danielsen previously led the State & Local Government Committee that is also slated to hear the controversial bill, A4045, at 10am at the Statehouse Annex.
The bill’s language and the notice of hearings were made public less than a week ago, but the response has been tremendously negative, with opposition from the NJ Working Families Party, the League of Women Voters of NJ, former State Senator Loretta Weinberg, and both of the leading candidates to replace indicted US Senator Robert Menendez.
No one answered the phone at Danielsen’s office that same day, and Danielsen quickly hung up when we called his mobile phone.
The bill would overturn a multitude of judicial decisions, including those that have enforced public access to the email logs of public officials.
Thousands of requests and responses are available on OPRAmachine.com, a project affiliated with New Brunswick Today. Requests run the gamut from police records to land use, redevelopment, and financials, as well as data and documents from state agencies, school districts, local towns, and important entities like NJTransit or Rutgers University.
The legislation, clearly on the fast-track, could bring about an untimely end to projects like OPRAmachine and introduce new obstacles to requesting records by requiring the use of a specific form. In most situations under current case law, government agencies must accept requests sent via email regardless of whether the entity’s official form is used.
Advocates, including the Public Defender’s Office and State Comptroller’s Office, are warning that Danielsen’s bill would cause serious harm, and raising concerns about the lack of input solicited and rushed public process to advance them.
“This bill will undermine OPRA. Less transparency in [government] inevitably will lead to more fraud, waste, and abuse,” wrote Kevin Walsh, the Acting State Comptroller.
The state’s largest newspaper, the Star-Ledger, also called the bills “a contemptible assault on government transparency.”
Senator-Mayor Paul Sarlo, one of the state’s last remaining dual office holders, chairs the Senate Budget Committee that will also be taking up the legislation. Sarlo, who is the Mayor of Wood-Ridge and an executive at a private company that builds roads, is sponsoring S2930, the companion to the Danielsen bill in the legislature’s upper house.
Though many reports are focused around the more-powerful Sarlo, most of the ideas in the bill stem from proposals made by Danielsen in a quartet of unpopular “reform” bills that died without receiving a hearing.
The Sarlo-Danielsen bills appear to be identical, and they include no new transparency requirements, doing little if anything to address concerns raised about the four-bill package last summer.
If approved, the current version of the legislation would significantly roll back transparency and make it harder for requestors to get their attorney’s fees paid when the government wrongly withholds public records.
It would also give governments the extraordinary power to sue people who they think are trying to use requests to harass them, “or to substantially interrupt government function.”
In those cases, a Superior Court Judge would be asked to issue a “protective order limiting the number and scope of requests the requestor may make… or eliminate the public agency’s duty to respond to government records requests from the requestor in the future.
New Brunswick Today asked Danielsen if he was trying to make it easier for governments to sue their citizens, referencing a new section of law that mirrored one of Danielsen’s controversial proposals from last year.
“I’m at work right now, and I don’t have a comment. I’m going to have to let you go,” Danielsen told this reporter, before hanging up the phone.
As we reported, Danielsen holds a second job as Executive Director at the Franklin Township Sewerage Authority, and he still maintains many lucrative government contracts through his private company, Network Blade LLC.
Some of the so-called “reforms” in the bill appear to be personal efforts to overturn rulings made involving a fire district where Danielsen’s company was involved as a government vendor and the subject of a request.
Attorney CJ Griffin, one of the state’s leading OPRA attorneys is currently representing New Brunswick Today in a police records case. She has suggested that the government’s right to sue requestors should be eliminated, not expanded: “Over the past few years, some public agencies have responded to an OPRA request by suing the requestor or filing a declaratory judgment action… This practice should be banned.”
Griffin has also proposed creating spaces on the internet to share more records with the public, including police, financial, and property records, which are the most common categories of OPRA requests.
If approved, the new version of the “OPRA” would be significantly watered down by new provisions that broadly expand the types of information that can be concealed from the public, including some categories that are vague and subjective:
- all telephone numbers, email addresses, and birthdates
- logs of telephone calls, emails, or texts
- electronic or paper calendars
- “draft material, including notes generated and used to prepare final reports, documents, or records”
- “information related to strategies or negotiating positions that would unfairly prejudice or impair contract negotiations”
- “structured reference data that helps to sort and identify attributes of the information it describes”
Even though most government agencies are not considered healthcare providers, the proposed version would also exempt “data classified under the ‘Health Insurance Portability and Accountability Act of 1996,'” also known as HIPAA.
The proposed bill also includes an expansive definition of personal identifying information that could be used to prevent the release of most government records: “information that may be used, alone or in conjunction with any other information, to identify a specific individual.”
Today, most OPRA requests are handled free of charge to the requestor. Special service charges, fees that are charged to the requestor, are currently only permitted when requests substantially disrupt agency operations, but those fees would “be presumed to be reasonable” under the new proposal.
Additionally, the new bill stresses that custodians of records would be “under no obligation to convert [records] to the electronic medium or format requested,” another provision that can provide an obstacle to requestors obtaining useful information.
The bill also provides for an overhaul to the notorious Government Records Council, but changes the make-up of the board to add more political appointees and pay them.
All told, the cost to taxpayers for the legislation is currently $8 million, including $4 million that would be distributed to local governments.
The hearings on the bills will be broadcast live on the NJ Legislature’s website.
Editor’s Notes: The author of this article is a member of the Board of Directors of the NJ Foundation for Open Government, which has called for legislators to withdraw the bills.
Charlie is the founder and editor of New Brunswick Today, and the winner of the Awbrey Award for Community-Oriented Local Journalism. He is a proud Rutgers University journalism graduate, a community organizer, and a former independent candidate for mayor of New Brunswick.
