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Wednesday, April 17, 2024

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Review & Opinion

We Can’t Let ‘Open Public Records’ Become ‘Somewhat Open Public Records’

We Can’t Let ‘Open Public Records’ Become ‘Somewhat Open Public Records’

As this was being written legislation was barreling through the legislature in Trenton that would have significantly altered the Open Public Records Act (OPRA). It would have impacted transparency in government, made it harder for even the most dedicated citizen to shine a light on government actions, and hampered the ability of journalists to keep the public informed about what their local, county, and state governments are doing.

Then as suddenly as the legislation first appeared, it was pulled. Widespread public outrage over the legislation brought an end to the effort to get it passed in a fast-track process. The bill had cleared two legislative committees by the time Speaker Craig Coughlin stopped it on March 14.

The measure had attracted significant opposition from labor unions, activists, journalists, and advocates of open government. The bill was set for a vote in the Assembly Appropriations Committee when the rush to get it passed finally ended.

Now we are told the bill is being revamped with “a bunch” of amendments. No one is yet saying what the amendments are that are being considered.

Senator Paul Sarlo (D-Bergen) a prime mover of the bill said he “supports the Assembly’s decision to delay consideration of the OPRA reform legislation.” Sarlo went on to say that certain amendments could make the bill stronger. He added that he wants to ensure that “the public will continue to be a part of the process.”

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We can find ways to improve almost any legislation after it has been in force for a while. The New Jersey has a process for updating our laws which draws from the experiences of all affected. When our Assembly and Senate close their ears to the input of the people, we will have taken a step toward tyranny, further distancing elected officials from the public they have sworn to serve. Thank goodness this bill was pulled.

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Interesting words from the man whose senate committee advanced the bill on a late-night vote immediately following seven hours of testimony in which the overwhelming tenor of the testimony was against the bill’s passage.

So, what was going on here?

When this bill was introduced just ten days prior to it being pulled, we were told it was because the OPRA statute had not been updated since 2002. The OPRA statute had to be modernized in order to deal with new technology-enabled privacy threats. The argument was also made that the bill aimed at putting an end to inappropriate and burdensome commercial uses of government records that could not have been envisioned when the statute was first enacted over 20 years ago.

Those opposed to the bill cried foul. They argued that the over twenty changes being made to the statute went well beyond what its supporters said was their intention. They saw a blatant attempt to make government actions more opaque and less susceptible to citizen scrutiny.

One example is the change in the bill on how legal fees are awarded. OPRA would no longer guarantee that if an individual prevailed in a court challenge to an OPRA denial, the agency in question is liable for the individual’s reasonable legal bill. The legislation would now say that reasonable attorney’s fees may be awarded instead of shall be awarded.

In other words, the citizen must put at risk the legal fees even when a state agency has inappropriately denied an OPRA request.

There is an old saying that if something looks like a duck, swims like a duck, and quacks like a duck, it is most probably a duck!

In this case, the bill being muscled through the legislature had all the appearance of a bad bill meant to serve lamentable purposes.

The problem is obvious to anyone who takes a moment to consider it.

An identical bill was introduced in the Assembly on the same day by its sponsor Joe Danielson (D-Middlesex). Exactly one week later the Senate and Assembly committees to which the bill was referred held required public testimony sessions at the same time, on the same night in an obvious effort to limit public input since most members of the public cannot be in two places at once.

On that same day, when public testimony was almost uniformly opposed to the bill, both committees took a vote passing the bill forward. The Senate vote came late in the evening when most members of the public had gone home.

Public comment was a box to be checked rather than an important part of the process meant to inform lawmakers. The testimony was a required exercise that was never intended to have any impact on the predetermined vote.

When have you known Trenton to move with speed? Well, they fast tracked the bill that gave legislators raises. That moved very quickly.

Speed is often just a means of ensuring that the opposition those legislators know is out there has no time to consider a bill’s contents thoughtfully. It guarantees that the opposition will be less cohesive and perhaps easier to ignore.

There are circumstances when fast-tracking a bill is necessary. In 2020 when legislators in Trenton were pushing through bills that provided loans for small businesses being crushed by the pandemic, fast-tracking was appropriate.

Where is the emergency that warrants moving this OPRA legislation at warp speed through the legislature? It does not exist. That alone puts the lie to all the reasons being given for why the statute should be changed.

If updating the statute to end inappropriate commercial use of state records were important, if protecting legitimate privacy concerns were important, if reducing the burden on clerks’ offices across the state were important, then a careful updating of the statute would include more and not less public input.

The changes to OPRA incorporated in the bill need to be judged both on their merits and on the speed with which certain legislators were trying to get it passed. It had the appearance of a bad bill. Simply put, it smelled.

 There was no fire! There was no emergency. Fast-tracking this bill was wrong, and that wrong is not made suddenly right because the bill was pulled. 

Those wishing to update OPRA need to slow down. They need to explain the changes that are viewed as necessary, listen to the public about the best way to make them, listen as well to public comment on what should perhaps be dropped, and while you are on the task of modernizing this 20-year-old piece of legislation, perhaps consider some of the reasons why transparency should be increased.

The ACLU of New Jersey has this one right when it says, “that this rushed effort to roll back transparency was poised to pass via backroom deals without public input is lost on no one.”

It should not be lost on us. When this bill returns in whatever form it deserves our close scrutiny. We have no reason to trust that its sponsors have the best interest of New Jerseyans at heart.

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From the Bible:  The integrity of the upright guides them, but the crookedness of the treacherous destroys them.  —  Proverbs 11:3

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