Michael Gottesman is the founder of the New Jersey Public Education Coalition.

Since the original passage of the Open Public Records Act (OPRA), it has stood for the proposition 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 accorded by P.L.1963, c.7315 (C.47:1A-1 et seq.) as amended and supplemented, shall be construed in favor of the public’s right of access”

For over two decades, our State has stood for government transparency and the public’s right to know. This is clearly stated in Section 1 of the current law, quoted below:

“1. Section 1 of P.L.1963, c.73 (C.47:1A-1) is amended to read as follows:

1. The Legislature finds and declares it to be the public policy of this State that: [G]overnment 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 accorded by P.L.1963, c.7315 (C.47:1A-1 et seq.) as amended and supplemented, shall be construed in favor of the public’s right of access; all government records shall be subject to public access unless exempt from such access by: P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented; any other statute; resolution of either or both houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law, federal regulation, or federal order; a public agency has a responsibility and an obligation to safeguard from public access a citizen’s personal information with which it has been entrusted, or information that might reasonably lead to disclosure of a person’s personal information, when disclosure thereof would violate the citizen’s reasonable expectation of privacy, or when the public agency has reason to believe that disclosure of such personal information may result in harassment, unwanted solicitation, identity theft, or opportunities for other criminal acts; and nothing contained in P.L.1963, c.73 (C.47:1A-1 et seq.), as amended and supplemented, shall be construed as affecting in any way the common law right of access to any record, including but not limited to criminal investigatory records of a law enforcement agency. (cf: P.L.2001, c.404, s.1)”

One of the amendments that might have been missed in S2930, which has now been passed by the New Jersey Senate and Assembly, is the replacement of this Section. In the opinion of this writer, the sponsors of the bill cleverly replaced it with a new Section 1 that provides definitions, so that the removal of the original section might go unnoticed. And despite representations that the change was removed prior to passage, it remains in the bill that has been sent to the Governor’s desk.

This removal of this section alone shows that the true intention of this act is to eliminate the presumption in our law that “government records shall be readily accessible for inspection, copying, or examination by the citizens of this State.”

This represents a monumental change from a State policy of transparency to one allowing public entities to use the proposed law to shield themselves from public scrutiny. Additionally, the proposed law would allow public entities to put enormous roadblocks in the process of answering OPRA requests and would allow them to refuse to answer at all if a member of the public or press sends the same request to multiple entities. May I remind you that this is the only method by which data can be obtained for statistical review?

For example, last year a disinformation campaign was pushed alleging that the majority of parents were “opting their children out of the 2020 Student Learning Standards for Health and Physical Education Curriculum” which I call the “safety curriculum.” By sending an OPRA request to every school district requesting documents showing the number of parents opting out, we were able to show that it was less than 6% and we provided the public with the truth.

Our next project is to obtain information on whether every school district in the State has actually implemented the 2020 standard. It protects children from sexual abuse, rape, STDs, STIs, and unwanted pregnancies while instilling in them that they have the right to say no!

What the proposed law doesn’t do is prevent the strain on public entities to answer the demands of commercial data companies who make a profit off the backs of custodians of records. Something the sponsors promised it would do. Instead, it provides an expedited process to them, placing their requests over those of New Jersey residents and journalists acting for the public good. Something that may be a constitutional issue since it would discriminate against members of the public and media while giving preferential treatment to commercial enterprises.

Further, Article 1, Section 6 of the New Jersey Constitution states that “[No] law shall be passed to restrain or abridge the liberty of speech or of the press.” Arguably this bill presents another constitutional question as it can be argues that is effectually it is “restraint of the press” access to obtain information.

As the fourth president of the United States, James Madison stated:

“Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.”

In an age of disinformation, it appears our current legislators want their legacy to be one of leaving our residents and their constituents in the dark, ignorant and uninformed. They have already voted on that.

However, will the Governor want to have the same legacy? Or will he stand by retaining the transparency that allows New Jerseyans to become involved and knowledgeable citizens who are engaged in the governing of this, the State of New Jersey.

In the opinion of this writer, the Governor has no choice but to veto this legislation.

Respectfully submitted,

Michael Gottesman