New Jersey Gov. Phil Murphy signed a bipartisan bill on Wednesday that a broad coalition of organizations says guts the state’s two-decade-old Open Public Records Act — making it more difficult for the press and general public to track government action, spending and official actions.
“If I believed that this bill would enable corruption in any way, I would unhesitatingly veto it,” Murphy said in his signing statement.
The governor’s office didn’t hold a public signing or announce that Murphy planned to sign the bill.
“I take the concerns regarding corruption and trust in our democracy extremely seriously,” Murphy said in the signing statement. “However, my responsibility as governor is to evaluate the bill on the merits, regardless of how it may be perceived. And in making this evaluation, I am mindful that this bill was the product of a great deal of discussion and compromise.”
A Fairleigh Dickinson University poll found that 81% of respondents opposed an earlier draft of the bill that legislators took off their schedule in March after two hearings where good government groups and members of the public booed and shouted objections.
The bill’s sponsors have described it as a way to save taxpayer dollars while fending off excessive requests from commercial requesters, like data brokers who then sell public information to marketers or use it to solicit business. But the version of the bill passed in both houses of the state Legislature with divided support from both parties May 13 — again over boos from the gallery — doesn’t include most provisions about commercial brokers included in an earlier draft. Instead, it gives them an option some of the bill’s opponents interpret as a way for commercial requesters to fast-track requests.
The bill makes it more difficult to request government emails, exempts access to many kinds metadata for public documents from release, and lets a government entity sue an individual it thinks is making too many requests to restrict their ability to file more. That scenario recalls the case of 82-year-old Elouise McDaniel, whom Irvington Township sued in 2022 and accused of harassing public officials because she made “voluminous” public records requests — 75 over three years — about township business. Ultimately, Irvington dropped the suit after the ACLU and a pro-bono attorney agreed to represent her.
“New Jersey should be strengthening government transparency, not undermining it in backroom deals,” Sarah Fajardo, the ACLU of New Jersey policy director, said in a statement after Murphy signed the bill on Wednesday. “It’s shameful that despite overwhelming concerns from their constituents, lawmakers fast-tracked, and the governor signed, a bill that severely restricts access to government records and limits the public’s ability to hold elected officials accountable.”
One of the provisions of the bill undercuts a provision of the Open Public Records Act, or OPRA, that lets a requester recoup attorneys’ fees if they sue over an improper denial of a document and win. A version of the OPRA bill introduced in March eliminated that rule altogether. The version Murphy signed keeps a watered-down version: It says a court only has to award attorneys’ fees if it finds the public agency “unreasonably denied access, acted in bad faith or knowingly and willfully violated” open records law.
The “fee-shifting” rule has been key for individuals and small publications that can’t otherwise afford to take OPRA cases to court, because many of the state’s transparency lawyers will work on contingency if they’re confident in an attorneys’ fees award.
“The mandatory fee-shifting when a government agency is found to have wrongly denied access was the main mechanism that jump-started being able to file these requests and actually get a response,” said Charlie Kratovil, a New Brunswick-based community activist and founder of New Brunswick Today told Gothamist in an interview last month. “So I think that gutting the fee shifting provision is going to embolden bad actors to not respond at all to respond with denials.”
Kratovil recently became leader of OPRAMachine, a tool that simplifies sending public records requests to hundreds of government agencies around the state, and tracks their progress. A message leading the site warns that if the bill passes, “OPRAmachine, as we know it today, will no longer be able to operate,” though Kratovil told Gothamist he’s committed to preserving the tool in some form.
It’s not clear if a site like OPRAMachine, which automatically publishes responses to OPRA requests made through its own forms, would be affected by a provision that bars requesters from sharing any imagery they receive of someone’s “intimate parts.” Government agencies usually censor such sensitive footage before release, but if a person using OPRAMachine received such footage from a government agency, the site’s automation would automatically post that agency’s response online, too.
The bill’s prime sponsor in the Senate, Paul Sarlo, has previously said he wants to dissuade “creepy” requests from people requesting policy body cameras — a potential reference to YouTube channels and other online media that post videos of embarrassing encounters with police. New Jersey law already bars sites that post police booking photos and require payment to get them taken down, but doesn’t address the content of such video channels.
“Instead of listening to the public and safeguarding transparency, New Jersey lawmakers have turned their backs on one of our essential rights,” Jesse Burns, executive director of the League of Women Voters of New Jersey, said in a statement Wednesday afternoon. “This long struggle to defend democracy has proven we must restore power to the people of this state so they cannot continue to be blatantly ignored by those that are meant to serve them.”
A group of advocates met with the governor recently, calling on him to veto the bill. He signed it while on a tight deadline to get his wish list in next year’s budget passed by the Legislature. The deadline to pass a budget and avoid a government shutdown is is midnight June 30.
State Senate President Nicholas Scutari and Sen. Paul Sarlo helped lead the charge for the overhaul of OPRA, making it a top priority during the budget negotiations season.
“There won’t be one piece of public records you cannot get today that you couldn’t get yesterday,” Scutari told NJ.com last month after the Senate passed the bill without discussion.