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KIYC: New Jersey lawmakers pass controversial bill that changes state’s Open Public Records Act

The state Assembly vote was 44-25 and followed some heated debate.

Walt Kane

May 14, 2024, 12:33 AM

Updated 40 days ago


New Jersey lawmakers have passed controversial legislation to restrict access to government records, making it harder for the public to find out what government agencies are doing.
The state Senate and Assembly on Monday passed a bill that would make significant changes to the New Jersey Open Public Records Act. The state Assembly vote was 44-25 and followed some heated debate.
Assembly Member Brian Bergen (R – Denville) said, “This bill kills 40 years of progress. If you vote for this bill today, ladies and gentlemen, you are a part of the problem.”
Assembly Member Victoria Flynn (D – Middletown) said, “I don't think it was ever the intent of anyone who sponsored this bill to take away government transparency and only, in fact, to enhance it.”
Transparency advocates, ranging from the League of Women’s Voters to the Society of Professional Journalists, argue the bill will cripple the public’s right to know. It allows agencies to sue members of the public who they believe are trying to “substantially interrupt the performance of government function,” and makes it easier for agencies to charge “special service fees” for any request they deem unusually complex. Currently, agencies have to justify the fees. Under the new law, the fees would be presumed to be reasonable.
The legislation also makes it harder for members of the public to sue agencies that wrongfully deny requests. It eliminates “fee-shifting,” a practice in which agencies found to wrongfully deny records requests were required to pay the plaintiff’s attorney fees. The new bill says attorney fees can only be imposed if a judge finds a denial was made in “bad faith.” Advocates say that standard is nearly impossible to prove and that public interest attorneys, who have typically taken OPRA cases for free, will now need to charge clients upfront. They say members of the general public are unlikely to pay thousands of dollars just to obtain a record they feel is being improperly denied.
Supporters of the bill initially contended town and county clerks were overwhelmed by records requests from commercial entities and data brokers. But the final version of the bill does nothing to improve that. In fact, commercial requestors can even get to the front of the line by paying a fee. Members of the media, scientists, educators and the general public cannot.
The bill now goes to Gov. Phil Murphy, who can sign it, veto it or conditionally veto certain provisions. The governor’s comments to date have not given much of a clue about his intent. He has said he is “all in on transparency” but has also claimed to see nothing “nefarious” in the legislation.

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