Gov. Murphy signs bill revamping public records law, in blow to transparency advocates

Gov. Phil Murphy signed a bill Wednesday that alters the Open Public Records Act in ways critics said will embolden public entities to deny access to government documents, limit requestors’ ability to challenge those denials in court, and shield a range of records that have previously been considered public.

In a statement, Murphy acknowledged that his signing of the bill will disappoint advocates who said the bill would limit transparency. But he said if he believed the bill would “enable corruption in any way,” he would “unhesitatingly veto it.”

“With history in mind, when it comes to the legislation on my desk, I take the concerns regarding corruption and trust in our democracy extremely seriously. However, my responsibility as Governor is to evaluate the bill on the merits, regardless of how it may be perceived,” Murphy said.

Activists condemned the lame-duck governor for his move to sign a bill they say was opposed by voters across the political spectrum. Sarah Fajardo, policy director at the American Civil Liberties Union of New Jersey, said residents made it clear that they want to see lawmakers strengthening transparency.

“It is shameful that despite overwhelming concerns from their constituents, lawmakers fast-tracked, and the governor signed, a bill that severely restricts access to government records and limits the public’s ability to hold elected officials accountable,” said Fajardo. “But we know that voters will have the last word at the ballot box next year – and maybe then Legislators will remember who they are meant to serve.”

Supporters of the bill, which was widely criticized by journalists, transparency advocates, and good government groups, said a revamp of the law is needed to modernize it and help governments handle what they call an onslaught of records requests by citizens and commercial entities.

A chief concern among the bill’s critics is a change in what’s called fee-shifting. Previously, when requestors sued governments over records denials and won in court, the losing party was forced to pay the requestors’ legal fees. The purpose was to discourage governments from issuing bad-faith denials of public records.

But under the bill signed by Murphy, a public entity that loses a records dispute in court would only be forced to pay the winner’s legal fees if there’s a finding of bad faith, an unreasonable denial of access, or a knowing violation of the Open Public Records Act. Critics of the bill said this would limit how often citizens and some media outlets can take public entities to court over records disputes, while supporters said it would save taxpayers money, an argument Murphy echoed Wednesday.

“Many local officials argue (mandatory fee shifting) unnecessarily incentivizes litigation when municipal and county clerks are trying their best to abide by the statute and denials of access are inadvertent or unintentional. These local officials note that this litigation, and the attorney’s fees that result, impose significant costs on taxpayers,” Murphy said.

Other provisions of the bill allow governments to sue requestors they believe are using the Open Public Records Act to interrupt government operations. Critics say they fear that provision would chill public records requests by subjecting requestors to the threat of legal action.

Governments must prove a requestors’ intent by clear and convincing evidence — a standard that requires they show their claim is substantially more likely than not — but there is no fee-shifting mechanism for such proceedings, meaning requestors would bear the costs whether they win or not.

The bill also includes new exemptions that would shield personal identifying information like names, addresses, and telephone numbers, among others, from disclosure on documents like pet permits, Motor Vehicle Commission records, and government notification system signups.

The bill creates a separate track for records requests filed by commercial requestors — a group that excludes political candidates, media, labor unions, governments, educational organizations, and, in some cases, nonprofits.

Governments would be afforded 14 days to fill commercial requests under the bill’s provisions, instead of the seven-day timeline levied on all requests under the previous version of the law. Commercial entities could pay a special service fee equal to twice the cost of filling the request to receive records within seven days.

Custodians seldom fill records requests without seeking at least one seven-day extension, and it’s unclear what happens if a custodian seeks an extension on a request for which a business has agreed to pay a special service fee.

The bill would allow governments to direct requestors to public documents posted online in lieu of filling the request, though the bill sets no standard on what documents must be posted and requires governments only post documents online to the “extent feasible.”

State funding for that provision is paltry. The bill provides $4 million for the purpose, but that money would be split among more than 1,000 municipalities, school boards, and other political subdivisions. It’s not clear whether such funding would recur. The bill doesn’t require it to do so.

Other provisions would codify non-binding precedent from the Government Records Council — a body that languorously adjudicates public record disputes, taking 21 months on average to resolve cases — that requires requestors provide names, a specific time period, and specific subject matter when seeking officials’ emails, texts, or other communications.

Courts have reversed denials on requests for such documents that are less specific.

The legislation also seeks to empower the Government Records Council. It would require the body to resolve disputes within 45 days, beginning 18 months after the bill’s effective date or about 21 months after its signing.

As is the case with the courts, the bill removes provisions requiring the council to award attorney’s fees to requestors who successfully challenge an illegally denied records request.

“While I do not believe the concerns raised about some provisions of the bill are irrational, I am persuaded that the safeguards in the bill and the protections provided by the GRC and the courts are sufficient to mitigate them,” Murphy said.