AVI SCHNALL AND BOB SINGER SPARK FEARS OF SECRECY AND CORRUPTION AFTER VOTING IN FAVOR OF CONTROVERSIAL LEGISLATION TO SHIELD GOVERNMENT INFORMATION FROM PUBLIC VIEW

The New Jersey Open Public Records Act (OPRA) is a major factor in how citizens across the state, including the members of the media, learn how governmental decisions are made and how our tax dollars are spent.

Our knowledge of what's going on in Town Hall is what keeps government transparent in their decision making and taxpayer dollar spending.

In an extremely controversial move, both houses of the Legislature passed legislation that - once signed into law by the governor - will take some information that’s currently public and shield it from view.

The bill, S-2930 - which was extremely fast tracked through the Legislature - could be the act’s most substantial overhaul of OPRA since it came into being 22 years ago.

While most Republicans voted adamantly against the bill, Senator Robert Singer and Assemblyman Sean Kean who represent Lakewood, voted in Committee and on the floor in favor of the bill. Democrat Assemblyman Avi Schnall also voted strongly in favor of the bill.

There are many troubling parts of this so-called reform bill, but one that sticks out is a line that says a public agency may deny disclosing personal information if it “has reason to believe ” that disclosure of such information may result in harassment.

Well, just about any information can lead to someone being “harassed.” This is a massive loophole.

The legislation would create new exemptions barring the release of information related to an expanded range of electronic devices, public security systems, and metadata.

The bill would allow custodians to deny requests for documents in the agency’s possession if such documents were created, maintained, or received — as in the case of applications and the like — by another agency. This can happen in some criminal investigations when a county prosecutor has municipal police records in its possession.

Custodians will also be required to redact a range of personal information — including names, addresses, telephone numbers, personal emails, and bank and credit card information — from documents ranging from pet permits to Motor Vehicle Commission records to public safety emergency response plans and government notification systems.

Yet other exemptions would limit the release of manuals, medical information guarded by federal privacy laws, and photos or video footage showing intimate body parts.

An earlier version of the bill would have barred the release of email, phone, and text message logs, public officials’ calendars, and certain information related to contract negotiations. These provisions however, were removed before the final vote.

New language would allow governments to add payroll costs to special service fees they can charge requestors who ask for electronic copies of physical documents. Other changes would allow custodians to ask for deposits before taking any steps to fill a records request.

Among critics’ chief concerns about the legislation is that it will end the mandatory awarding of attorney’s fees to requestors who successfully challenge a denial in court.

Under current law, agencies found to have broken the law have to pay the requestor’s attorney fees. The new bill amends the law so that such awards would only be required if a judge finds the custodian acted in bad faith, unreasonably denied access, or knowingly violated the law.

The bill’s supporters say mandating the award of attorney’s fees costs government entities too much. But critics worry that weakened fee-shifting — and separate language that requires requestors to prove special fees custodians can charge for complex requests are unreasonable — would allow governments to improperly shield records while leaving requestors without legal representation to challenge such denials.

Moreover, a big issue with this change would be that attorneys will now be less likely to take on OPRA cases.

The bill will bring major - hopefully positive- changes to the state’s Government Records Council (GRC).

Currently, if a government agency denies your OPRA request, you can appeal in Superior Court or to the GRC.

The GRC is famously slow. A 2022 state comptroller report found it took the agency 21 months on average to resolve a case.

The new bill will grant the agency $6 million in funding, give it discretion to award attorney’s fees, and require it to complete records disputes within 90 days beginning 18 months after the bill is signed into law.

It calls for the agency to create a uniform records request form that municipalities must adopt, which would allow custodians to deny outright requests that do not include a requestor’s name, address, email, and phone number.

It would allow governments to sue records requestors if they believe they filed requests to stunt government operations and allow judges to issue orders limiting individuals’ ability to file requests under the law.

It would codify non-binding precedent from the Government Records Council that requires requestors to provide names, a specific time period, and discrete subject matter when requesting officials’ emails or text messages. New Jersey courts have reversed denials on less specific requests.

Backers of the bill tried to describe it as a balancing act of transparency and efficiency: protections for public access, and protections for clerks who are sometimes overloaded with OPRA requests or harassed by opportunists. They claim that the law has been hijacked by commercial operators who have inundated records custodians with requests and driven up government costs.

However, many of the bill’s provisions have alarmed activists, journalists, and transparency advocates who say the changes would sharply limit the kinds of public documents citizens can access and do nothing to stem the flood of commercial requests.

“We are a government of the people, by the people, for the people. This legislation upends that,” Assemblywoman Nancy Munoz (R-Union) said in a statement.

Attorney C.J. Griffin, partner and director of the Stein Public Interest Center, zeroed in on the bill’s delicate use of language to shift the financial burden – and the burden of proof – for an OPRA request onto the public. “This flips the burden, saying we have to go to court and somehow convince the judge it’s unreasonable when we don’t have access to the information,” said Griffin. “It’s a way to deny access without being honest and saying, ‘we’re denying access’.” The bill provides government with ammunition to bog down in court – and legal costs – an individual or entity seeking public records.

The Senate vote was 21-10. Oddly, Republican leader, Anthony M. Bucco, a co-sponsor in the Senate, was not in the chamber for the big vote.

The Assembly vote was 44-25.

There were plenty of boos and jeers from the gallery.

While most Republicans voted adamantly against the bill, Senator Robert Singer and Assemblyman Sean Kean who represent Lakewood, voted in Committee and on the floor in favor of the bill. Democrat Assemblyman Avi Schnall also voted strongly in favor of the bill.

The governor now has 45 days to take action on the bill.

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