The Franklin Reporter & Advocate Eight Villages, One Community
May 13 will be remembered as a sad day for transparency in government in New Jersey, as if there already weren’t enough of those.
May 13, 2024 is the day that the state Legislature, in a rare bipartisan fashion, voted to decimate a law that for two decades has aimed a bright light into the dark corners of governmental affairs, from the local, to the county, to the state level.
As a result of that illumination, countless stories of governmental corruption, greed and malfeasance have been exposed by the state’s journalists, good government groups and everyday citizens. We remind our readers of the stories about former Township Councilman Rajiv Prasad’s shenanigans, none of which would have been exposed had it not been for the OPRA.
That illumination is no small thing; study after study has shown that the less transparent a government is, the higher are taxes and more prevalent is corruption. Crooks thrive in the darkness.
One of the leading figures in this gutting of a supremely important law is our own state Assemblyman Joe Danielsen, whose defense of the bill on the Assembly floor on May 13 was vigorous, colorful and, at times, induced head-scratching. Danielsen was the prime sponsor of this bill in the Assembly.
Open records advocates knew we were in trouble from the get-go with the latest version of this bill, released late last week, because the very first section, the one that declares it is the policy of the state of New Jersey that “government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest, and any limitations on the right of access … shall be construed in favor of the public’s right of access” was removed. Just cut right out.
The biggest assault on the public’s right to government documents in this bill is the elimination of a provision that is considered the bill’s enforcement mechanism: it allowed attorneys successfully representing document requestors challenging request denials to be awarded reasonable fees. The language governing that was changed from “shall” to “may,” and put a requirement on the requestor to prove that the agency acted in bad faith in willfully denying the requested documents. That’s a standard that is totally subjective and, therefore, difficult to reach.
That essentially takes the teeth out of the OPRA. In the past agencies knew that if they broke the law and were found out, they were going to have to reimburse the requestor’s attorney. Now that that threat is removed, lawyers will take fewer of these cases because they may not get paid for their time.
Now, one of Assemblyman Danielsen’s objections to the old bill was what he said were outrageous fees awarded to lawyers in those instances, as much as $800 an hour. He offered no proof, but even if that is true, that can easily be fixed by tweaking the bill. Complete decimation is not necessary.
One of the Senate and Assembly sponsors’ main objectives, they said, was to stop so-called data mining companies from filing reams of requests for information that they later sell. That sounds reasonable. But in the version that was approved on May 13, that provision was removed. So … suddenly that’s not a problem anymore?
Assemblyman Danielsen spoke May 13 of “armies” of OPRA abusers who file thousands of requests then lie in wait for an agency to make a mistake and immediately confront them with an offer to settle for cash.
Armies of OPRA abusers? Really?
We don’t doubt that there are people out there who try to take advantage of the OPRA law for their own monetary gain, but once again, that’s something that could be addressed by tweaking the law, not gutting it.
There are other provisions that make this a horrible bill: requiring very specific information in a request for emails (which would have made the Prasad stories impossible to write, had this been in place then); allowing records custodians to refer a requestor to another agency if that agency is the originator of a requested record (reporters will sometimes ask for the same document from different agencies to see if there are any discrepancies between them) being just two of them.
There’s also a provision that allows an agency to file a court action against a requestor who the agency feels is a harasser. That means frequent OPRA users may have to think about hiring an attorney to defend them if they irritate a state or local agency to respond to these Superior Court complaints.
Those Assembly members who spoke against the bill (there was no debate in the Senate) rightly noted that this bill will do nothing more than reduce the public’s trust in government at all levels in New Jersey. Assemblyman Danielsen’s refusal to answer questions about the bill from his colleagues is just emblematic of that.
This bill now heads to Gov. Phil Murphy’s desk for his signature. Reports are that he has not signaled which way he is leaning on this, although we find it hard to believe Democratic leaders in the Legislature would have advanced the bill if they weren’t sure he was going to sign it.
We hope the Governor sees the light and sends this misbegotten bill back for more review and a revamp. He has no real incentive to do this – he’s not running for any state post again – and if he doesn’t really care about government transparency, we can only hope that he at least cares about his legacy.
For those of you keeping score, here’s how the votes were cast:
Assembly Session:
- Allen, John – Not Voting
- Atkins, Reginald W. – Yes
- Auth, Robert – No
- Azzariti Jr., John V. – No
- Bagolie, Rosaura – No
- Bailey, David – No
- Barlas, Al – No
- Barranco, Christian E. – No
- Bergen, Brian – No
- Calabrese, Clinton – Not Voting
- Carter, Linda S. – Yes
- Clifton, Robert D. – Not Voting
- Collazos-Gill, Alixon – No
- Conaway, Herb – No
- Coughlin, Craig J. – Yes
- Danielsen, Joe – Yes
- DeAngelo, Wayne P. – Not Voting
- DePhillips, Christopher P. – No
- DiMaio, John – Yes
- Donlon, Margie – Yes
- Drulis, Mitchelle – No
- Dunn, Aura K. – No
- Egan, Kevin P. – Yes
- Fantasia, Dawn – No
- Flynn, Victoria A. – Yes
- Freiman, Roy – No
- Greenwald, Louis D. – Yes
- Guardian, Donald A. – No
- Haider, Shama A. – Not Voting
- Hall, Garnet R. – Yes
- Hutchison, Dan – Yes
- Inganamort, Michael – No
- Kanitra, Paul – No
- Karabinchak, Robert J. – Yes
- Katz, Andrea – No
- Kean, Sean T. – Yes
- Kennedy, James J. – Yes
- Lampitt, Pamela R. – Yes
- Lopez, Yvonne – Yes
- Marenco, Julio – Yes
- Matsikoudis, Michele – No
- McCann Stamato, Barbara – Not Voting
- McClellan, Antwan L. – Yes
- McCoy, Tennille R. – Not Voting
- McGuckin, Gregory P. – No
- Miller, Cody D. – Yes
- Moen, William F. – Yes
- Morales, Carmen Theresa – Yes
- Murphy, Carol A. – No
- Muñoz, Nancy F. – Not Voting
- Myhre, Gregory E. – Abstain
- Park, Ellen J. – Not Voting
- Peterpaul, Luanne M. – Yes
- Peterson, Erik – No
- Pintor Marin, Eliana – Yes
- Quijano, Annette – Yes
- Ramirez, Jessica – Not Voting
- Reynolds-Jackson, Verlina – Yes
- Rodriguez, Gabriel – Yes
- Rumpf, Brian E. – No
- Sampson, William B. – Yes
- Sauickie, Alex – No
- Schaer, Gary S. – Yes
- Scharfenberger, Gerry – Yes
- Schnall, Alexander – Yes
- Simmons, Heather – No
- Simonsen, Erik K. – Yes
- Spearman, William W. – Yes
- Speight, Shanique – Yes
- Stanley, Sterley S. – Yes
- Sumter, Shavonda E. – Yes
- Swain, Lisa – Yes
- Swift, Claire S. – No
- Torrissi, Michael – No
- Tucker, Cleopatra G. – Yes
- Tully, Chris – Yes
- Venezia, Michael – Yes
- Verrelli, Anthony S. – Yes
- Webber, Jay – Yes
- Wimberly, Benjie E. – Yes
Totals: Yes: 42; No: 27; Not Voting: 10; Abstain: 1
Senate Session:
- Amato, Carmen F. – Yes
- Beach, James – Yes
- Bramnick, Jon M. – No
- Bucco, Anthony M. – Not Voting
- Burgess, Renee C. – Yes
- Burzichelli, John J. – Yes
- Corrado, Kristin M. – Not Voting
- Cruz-Perez, Nilsa I. – Yes
- Cryan, Joseph P. – Yes
- Diegnan, Patrick J. – Yes
- Gopal, Vin – Yes
- Greenstein, Linda R. – Yes
- Henry, Owen – Yes
- Holzapfel, James W. – Not Voting
- Johnson, Gordon M. – Not Voting
- Lagana, Joseph A. – Yes
- McKeon, John F. – No
- McKnight, Angela V. – Not Voting
- Moriarty, Paul D. – Yes
- Mukherji, Raj – Not Voting
- O’Scanlon, Declan J. – No
- Pennacchio, Joseph – No
- Polistina, Vincent J. – Not Voting
- Pou, Nellie – Yes
- Ruiz, M. Teresa – Yes
- Sarlo, Paul A. – Yes
- Schepisi, Holly T. – Not Voting
- Scutari, Nicholas P. – Yes
- Singer, Robert W. – Yes
- Singleton, Troy – Yes
- Smith, Bob – Yes
- Space, Parker – No
- Stack, Brian P. – Yes
- Steinhardt, Douglas J. – No
- Testa, Michael L. – No
- Timberlake, Britnee N. – No
- Tiver, Latham – No
- Turner, Shirley K. – Not Voting
- Vitale, Joseph F. – Yes
- Zwicker, Andrew – No
Totals: Yes: 21; No: 10; Not Voting: 9
