Some people consider the New Jersey State Legislature to be slow as molasses when getting things done. Yet, in an exception that may prove the sentiment’s accuracy, our elected officials are modeling themselves after the Roadrunner, speeding one particular bill through the legislative process. 

This proposal, S-2930, sponsored by Democrat Paul Sarlo, was introduced on Thursday, March 7th. As quick as a whip, it will have its public hearing before the Senate Budget and Appropriations Committee on Monday, April 11th (10 am, Committee Room 4 on the 1st floor of the State House Annex) and then head for what appears to be a predetermined path for confirmation and Gov. Phil Murphy’s signature.

What’s the big rush? This, after all, is a bill that will gut the Open Public Records Act (OPRA), which allows citizens, advocates, businesses, and (yes) journalists to get public information from public agencies. Current OPRA rules bolster transparency and accountability. What our legislators want to replace it with would impair the public’s ability to access public information and allow school districts et. al. to hide it. Why does this matter? OPRA is how we uncover missing laptops in Lakewood and malfeasance in Vernon Township and how Newark Superintendent Roger Leon misled residents about the cost of repurchasing a school building.

It’s not just journalists who will suffer if this proposal becomes law.

While the changes to the bill are lengthy, two changes in particular will burden parents of schoolchildren who are fighting for their children’s rights to a thorough and efficient education. First, the new proposal will bar OPRA requests when the parents are in litigation with a school district. Second, while previously districts had to pay attorney fees for parents when the court ruled in their favor (known as “fee-shifting”), if the proposal is enshrined into law the matter of payment will be up to the judge’s discretion.

For parents of students with disabilities who often have to advocate more fiercely for their child’s rights, these proposed changes will be especially deleterious. Some of these parents rely on OPRA to request information about their child or have their child’s records sent to out-of-district placements. One example: Parents in Camden sued the city district because they wanted their son’s records sent to two private special education schools. The district refused to release the records, a violation of OPRA. The parents won in court. One big reason they won was they were able to hire a lawyer who knew his fees would be reimbursed if the judge ruled for the family. If the law changes, children and their families will be short-changed because the alterations inscribe inequity into the process by eliminating fee-shifting. If a parent is rich and can afford to hire lawyers, he or she will do so without caring about reimbursement. If a parent doesn’t have the money, he or she will be without legal representation. The district, of course, will be ably represented by its own law firm.

How does this make New Jersey, as Gov. Murphy likes to say, “stronger, fairer, and more equitable”?

Maybe I’m missing something. I asked special education attorney Jamie Epstein to clarify how the changes proposed for OPRA will parents and their children. “This is important,” he said. “[The changes] will severely restrict the only way families can get access to their children’s records from boards of education. And school boards know if parents can’t access their children’s records they have to just trust that their children are getting what they’re supposed to when they turn over custody for six hours a day.”

Ironically, this is National Sunshine Week, which commemorates the United States  passage  of the Freedom of Information Act  in 1966. New Jersey is on the verge of becoming less free with information. Is that really how we want to play this?

Via Krystal Knapp at Jersey Vindicator, here are the key changes in the bill:

• The bill guts fee-shifting by making it discretionary, not mandatory, which will make it difficult for requestors who are denied records to find lawyers to represent them to fight records denials from agencies that don’t follow the law and wrongfully deny access to public records.
• The bill would make any “draft” private, which experts say makes it ripe for abuse.
• The bill exempts all email logs and call logs.
• The bill makes it much harder to request emails because a “specific subject matter” and “discrete and limited time period” must be provided, and the requestor must identify the specific person (not a job title, for example) whose email must be searched. That means the requestor must know the names of the people involved at the public agency.
• Records custodians can deny any request if the agency thinks it could lead to “harassment,” which is vague and subjective.
• The bill exempts all metadata.
• A “task force” would be created to study police records, and the task force would be stacked with law enforcement and government representatives.
• The bill exempts email addresses, home addresses, and pet license information.
• The bill mandates the use of an OPRA request form, adding one more hurdle to obtaining records. Currently, citizens can email requests without using an official form.
• The clock starts ticking for custodians to fill a request when the custodian “receives” the request. This means if a custodian is away from work, those days don’t count in terms of the timeframe for responding to requests. As it already stands, most custodians routinely request one or two extensions to produce records.
• Records custodians will no longer have to give requestors documents in the format the requestors want anymore. For example, you may want a document sent to you via email, and the custodian could insist on giving you a paper copy instead.
• You cannot request a record if it relates to current litigation against a public agency or if it is duplicative of a discovery request. Lawyers say this affects their ability to do work for their clients.
• Records custodians can take 14 days to fill a request if they have to review it for Daniel’s Law compliance. Daniel’s Law forbids the disclosure of home addresses for public officials.
• The bill would take away the incentive to comply with OPRA because it revokes the personal liability of records custodians for willful violations of the statute. Instead, the agency and thus the taxpayers would pay the fine. 
• The bill also significantly limits “commercial” requests.