Good Morning Chair Karabinchak and members of the committee. Thank you for the opportunity to testify today.
The bill as currently drafted would gut the public’s access to records that are generated by public dollars by public employees. Rather than support the public’s access, this bill instead erects more obstacles to public access and removes protections that make it possible to combat erroneous denials.
Government records are generated by and for the public. To ensure transparency and accountability for government activity, the public can and should be able to access those records. The entire purpose of the Open Public Records Act (OPRA) is to expand and improve public access.
As a research organization, NJPP frequently puts together its reports using public data that it requests from public agencies. Public health data, budget data, and meeting minutes are critical components of understanding how government priorities are set. And as agencies put less and less information on public websites, OPRA has become one of the only ways to obtain this information. As an example, NJPP had to use OPRA to request documents such as:
- Preschool attendance data
- NJ Transit budgets and meeting minutes
- Local law enforcement budgets
Already many requests are subject to unexplained delays and erroneous denials. This bill would create even more red tape for requestors and limit access to specialized researchers or moneyed special interests, rather than members of the general public.
Below are just a selection of the different ways in which this bill would harm transparency and the right of the public to understand what it is that government officials and employees are doing with public money and public trust, but at this juncture, I simply urge the committee to vote NO on this bill. No set of amendments can improve what is a tear-down of the entire concept of open records.
Almost every provision in the bill harms public transparency:
- Expands exemptions:
- Exempts whole categories of public records: Because of obscure data-keeping policies, members of the public frequently cannot request data because they don’t know what data exists. What email communication occurred, when calls took place, what date a PDF was created – these are critical data for understanding how government decisions are made, especially as more records become electronic.
- Creates catch-all exemption for anything that may or might lead to disclosure of personal information or harassment: Placing new exemptions for information that “might reasonably lead” to disclosure of personal information and information that the agency “has reason to believe . . . may result in harassment, unwanted solicitation, identity theft, or opportunities for other criminal acts” allows enormous discretion to public agencies to deny requests behind the veneer of protecting the public. This exception is wide enough that it can be used for a denial of almost any information even tangentially related to a specific person or group of people.
- Creates unbalanced “task force” to study police records: Though special circumstances do often apply to law enforcement records, they are still government records preserved on behalf of the public. Given the strong public interest in accountable policing, any task force should have a clear charge focused on that accountability and its composition should reflect that goal.
- Increases incentives for non-compliance/denial:
- Makes fee-shifting discretionary rather than mandatory: The opaque and slow Government Records Council process means that the only effective way to resolve OPRA denial complaints is through the courts. Because these cases do not frequently result in money damages, mandatory fee-shifting is the only incentive for lawyers to take on these cases for citizens.
- Establishes personal immunity for willful violations: As has been seen in other areas of public employee misconduct, the public ends up paying the bill for the costs of violations and litigation. Eliminating personal immunity for willful violations of OPRA will create more incentive not to comply, because the agency, not the custodian, will be on the hook.
- Expands red tape
- Requires correspondence to be on a “specific subject matter” and “discrete and limited time period” from a specific person: Say that a member of the public is interested in finding out about why a municipality made a decision to sell a parcel. The member requests emails pertaining to the sale of the parcel, but does not necessarily know when those emails would have been sent, or even the identity of the relevant employees who made the decision.
- Allows data to be provided in any format at the discretion of the custodian, even if highly inconvenient: Many records remain only accessible in hard copy. This format is highly inconvenient especially when records are voluminous. Providing records in the requested format when possible aids public access.
- Extends time period for response from 7 to 14 days “as appropriate”: The bill de facto eliminates seven-day requirements by adding “14 days as appropriate” in a variety of circumstances. No doubt custodians will find it appropriate to use the 14 days rather than seven.
- Extends time period to review for Daniel’s Law compliance: A perfectly reasonable concern for compliance with state confidentiality law should not necessarily require a 14-day review period to buy additional delays in compliance.
- Extends time period based on when a request is “received” rather than sent: This creates an incentive to ignore requests or not to open them in a timely manner.
- Mandates use of the OPRA request form: This simply provides another way to deny an otherwise-legitimate request for not going through the proper portal, especially when many state residents still lack internet access or a vehicle.
- Limits “commercial” requests: The definition of “commercial” is so broad that it likely includes legitimate purposes. A wide range of businesses use public records. A bill targeting dubious or predatory commercial use requires much more tailoring to ensure that members of the public are not excluded from access.
As the members of this committee can no doubt see, this bill represents a wholesale rewriting of the OPRA statute to hide more and more government business behind closed doors. Members of all political parties and backgrounds should see the risks of hiding accountability for government activity.
