Gov. Phil Murphy again showed leadership by standing firm against pressure from the media, the lawyers and the special interests who tried hard to prevent OPRA reform. The result was a big win for taxpayers.
While parts of the OPRA reform legislation might require more effort for information seekers, the new law ends attorney fee shifting and saves taxpayers millions in local property taxes.
Obtaining Government Records Under OPRA
New Jersey’s Open Public Records Act governs the public’s access to government records and is essential to government transparency. OPRA provides a statutory right of access to government records and holds records custodians to a response deadline. It also defines what constitutes “government records” and provides administrative appeals processes if access is denied.
One of the key public policies underlying OPRA is that government records must be readily accessible for inspection, copying, or examination by its citizens, with certain exceptions, for the protection of the public interest. At the same time, public agencies have a responsibility to protect the citizens’ personal information they possess when disclosure of that information would violate reasonable expectation of privacy.
While OPRA is essential to fostering public trust and government accountability, compliance with the old OPRA consumed valuable public resources and advice of counsel. Local government lawyers needed to differentiate between OPRA requests that require disclosure and improper requests that might legally be opposed. If a judge disagreed with a town’s opinion, they were required to compel the town to pay the requestor’s legal fees.
OPRA Amendments Remain Controversial
Since OPRA was enacted in 2002, technology has evolved significantly, along with the way government conducts its business. OPRA has also become prone to abuse, which places a significant burden on local governments and taxpayers.
The New Jersey Legislature debated several different OPRA reform measures over several years, but failed to push legislation over the finish line until now. The amendments under Senate Bill 2930, which Gov. Murphy signed into law on June 5, 2024, make several key changes to modernize the law and prevent abuse.
The amended law requires government records be made available on public websites to the extent feasible, so they will be readily accessible even without an OPRA request. It also creates several new exemptions from disclosure, including debit card numbers; bank account information; month and date of birth; email addresses; and any portion of a document that discloses personal identifying information (includes street address of primary and secondary homes) of persons who provide such information for the sole purpose of receiving official information, such as Nixle alerts, newsletters, etc.
The amendments also address the increased use of OPRA requests by commercial entities. Senate Bill 2930 prohibits the sale of data obtained by OPRA. It also creates an extended timeline for records custodians to respond to requests from “commercial requestors” who intend to use the record to generate a profit.
However, the most important change in Senate Bill 2930 is the removal of mandatory legal fees to a requestor who prevails in a lawsuit against a public agency. Instead, the new law creates a “rebuttable presumption” that the fees and special service charges imposed by a public agency for an OPRA request are reasonable. This shifts the burden back to the requestor to show that the government entity is charging excessive fees or somehow acted wrongly by denying the requested information.
Most objectors to the new law consisted of media and the cottage industry of individuals, law firms and legal clinics that have made a business out of suing towns to generate revenue at taxpayers’ expense. They put up a fierce fight using their ink and their money, but the State Legislature and the Governor stood up to them.
The Sky Is Not Falling
Notwithstanding the very vocal minority speaking out against OPRA reform, most people, including the NJ League of Municipalities and the NJ Institute of Local Government Attorneys agreed that OPRA needed to be modernized.
As with legislative sausage making, compromises were required. Not all the changes in Senate Bill 2930 boost transparency, but they don’t abolish it either. As Gov. Murphy said when he signed the law, the “changes, viewed comprehensively, are relatively modest.” Additionally, many of the concerns raised about its most controversial provisions can still be addressed by the courts.