Power of the Pen: Get to Know NJ's Open Public Records Act Before Lawmakers Change It
OPRA is a powerful but under-utilized tool in the citizen's arsenal
'Sunshine laws' represent one of the most significant tools for insuring accountability and good governance in the United States of America. There are lots of reasons why people or entities seek access to public records. Although these laws are used as a staple by reporters and journalists within the media sphere, requests are also routinely filed by individuals for private uses and by various entities (businesses, organizations, political candidates, etc.) seeking information for things like profiling, marketing and electioneering.
Practical access to records as defined and restricted by New Jersey’s Open Public Records Act (OPRA) is apparently impacted by circumstances both in and out of government. One seemingly long-standing issue (narrative?) paints commercial requesters as gumming up the system, thus preventing clerks from filling other requests. Government backlogs and labor allocation challenges induced by the pandemic may be a factor. OPRA exempts a lot of specific records types, so sometimes a request might need to be evaluated by another government employee or counsel before a clerk can release documents. Or the requested information might not have been documented in a form that’s considered a government record.
While the law does require that custodians follow up and produce responsive documents in a timely manner, WANJ has been contacted by frustrated members of the public who report waiting months for access to records. Requests are acknowledged initially, in keeping with the law. However, instead of fulfilling them, government employees send correspondence restating delays and extending deadlines for producing the document(s.) How long can what seems like an endless cycle continue before someone considers this to constitute an effective denial of access?
Now is the time to learn more about OPRA, especially since NJ lawmakers are signaling that changes may be on the horizon. Originally this law was intended to foster transparency and public trust. Keep reading and judge for yourself if the picture that's emerging currently lives up to that pledge.
Fast Facts:
OPRA was passed in 2002 and signed into law by Governor Jim McGreevey. The Government Records Council (GRC) is the state office charged with acting as a hub for information about OPRA, helping facilitate access to public records and mediate disputes regarding denials. Challenges can also be filed in Superior Court if a requestor believes that they have unlawfully been denied access to government records which are subject to disclosure under OPRA.
A nearly decade old narrative based on local government concerns and experiences with OPRA usage has been represented as demonstrating a need for reforms to the act. Critics specifically point to extensive commercial requests, indicating both labor-related and resultant fiscal strains on smaller government subdivisions (i.e. municipal) who are charged with providing public records access. Some officials even cite this as a compounding challenge to compliance with OPRA's timely response requirement. Research uncovered a 2014 PBS video highlighting these types of commercial records requests.
A change in the law at the beginning of the pandemic (P.L. 2020 c.10) loosened OPRA requirements which specify how long records custodians have to respond to requests during emergencies. New Jersey is still under a general state of emergency (EO 103) due to coronavirus impacts. (For details see GRC letter of March 26, 2020.) This may not be a continuing, active factor much longer. Calls to end the NJ emergency have recently gotten louder and testimony from Health Commissioner Judy Persichilli to state senators on May 4 signaled that - after 3+ years - the Murphy administration is indeed making preparations to declare that the coronavirus threat is over.
Numerous (mostly unrealized) bills to amend OPRA in various ways have been introduced over the past several years. Aside from narrowly-focused changes such as restricting access to certain types of information within government records or exempting disclosure of personal identifying information via public records requests for certain protected classes of individuals (i.e. crime victims, judges, elected officials) most proposed amendments have failed to become law. One bill that has been re-introduced a few times, with no success to-date, seeks establishment of a study commission charged with finding solutions to current and perceived OPRA problems. Comments made by Assembly Speaker Craig Coughlin (LD-19, Woodbridge, Middlesex County) in November 2022 suggest that elected officials have a renewed interest in amending the law in a more substantial way, but there hasn’t been much public comment about what that means.
Bottom Line:
How soon and what types of changes might be proposed to reconfigure and/or update OPRA are difficult to predict. Legislative activity focused on negotiating and passing the Fiscal Year 2024 state budget is ongoing through the end of June. Based on the current timeline, it seems unlikely that OPRA will be addressed before the November 2023 election. Historically, summer recess is 'extended' during state election years while re-election campaigns of members of the Senate and Assembly take precedent, so there probably won't be any major moves after the budget passes. However, there's a chance that changes could be brought up and fast-tracked during the 'lame duck' session (mid November 2023 - early January 2024) after Election Day. And that option could be executed with less political risk since there are many retirements among current state legislature members while others may not be re-elected.
Only time will tell what the future of NJ public records access looks like, but YOU can and should be part of the discussion. Armed with this information and your own research, take your concerns and suggestions to elected officials. Consider reaching out locally to responsible parties such as clerks, commissioners and council members in your town and county to learn more about how OPRA requests impact your community. Write your NJ representatives (find their contact information here.) Call Governor Murphy's office (609-292-6000) or light up his social media. Good governance is contingent upon public engagement and 'sunshine laws' are no good if the public isn't up to speed and/or can't utilize them effectively.