N.J. Legislature should stop blocking expansion of public records access and modernize public records and meetings laws

Planet Princeton Editor

Every time a proposal to strengthen New Jersey’s Open Public Records Act or Open Public Meetings Act s proposed, the New Jersey Legislature kills it or simply lets it die.

Former Sen. Loretta Weinberg (D-Bergen) tried and failed several times to overhaul, modernize, and expand the Open Public Records Law and Open Public Meetings Act to promote more transparency in government, proposing that some amendments clarify and strengthen provisions of the laws, while others incorporate new forms of technology that have evolved since the public records law was enacted in 2001.

“The public has a reasonable expectation to transparency from government, and while New Jersey has, in the past, led the charge nationally in adopting public records and meeting laws, it’s time that we update and expand those laws to stay ahead of new trends in technology,” said Weinberg when she reintroduced bills. “In the Digital Age, our current laws governing public meetings and records requests have fallen behind the times, and have created large gaps in transparency. It’s time to correct the deficiencies in the law, and bring OPRA and the Sunshine Law into the 21st Century.”

Many Republicans voiced opposition to her proposals for changes to the laws near the end of her Senate career last year, while Democrats were simply silent. A bill Weinberg sponsored that would have revised the Open Public Records Act in meaningful ways, S-380, did not advance.

One of the proposed changes would have curtailed a provision of the law that allows public officials to shield documents by labeling them “advisory, deliberative, or consultative.” The bill also defined the term “immediately.” Certain records are to be provided to citizens “immediately” but many government agencies don’t seem to know what the term means, often delaying the release of such records such as budgets or contracts for weeks.

The bill also expanded and clarified various definitions and made changes to the duties of record custodians and the state’s Government Records Council.  It revised the composition of the Government Records Council and changed the council from being in the state Department of Community Affairs to being in, but not of, the Department of Community Affairs. The bill proposed some changes to penalty provisions and modified access to the courts. 

The bill also required the state to provide certain state agency financial information on the state’s open data website. It also established the New Jersey Local Public Finance Internet Website Development Program to provide advice and technical assistance to local government units that create a searchable local public finance Internet website. The bill required the state Office of Information Technology to develop and maintain a searchable, online database so units of local government could submit a government record for retention on that database.

More Sunshine

In the 1970s, the state enacted the open public meetings act, more commonly known as the Sunshine Law. Another bill sponsored by Weinberg would have included quasi-governmental organizations, as well as independent authorities, redevelopment entities, and improvement authorities, and would have required a public body to provide electronic notice of a meeting on its website, as well as access to meeting minutes, agendas, resolutions and ordinances. The bill also would have limited when a public body can go into closed session.

One of the strongest opponents of reforms has been the New Jersey League of Municipalities. The league, representing local officials across the state, opposes changes to the laws every time they are proposed, arguing such changes would be a costly burden on municipalities and require more staff time to comply with new provisions.

Such opposition to reform, often cloaked in concerns about costs and staff time, fails to recognize that ultimately, government officials work for and are paid by the public they serve, to conduct the public’s business. There are many good public records custodians in the state who work in earnest to fill public records requests in a timely manner and communicate delays, but often they are hampered by lawyers and politicians who seek to block or delay the release of information. The laws need to be updated to promote transparency and incorporate two decades of sweeping changes in technology. All these technological changes should also make it easier, not more difficult, for government agencies to be more transparent.

“When the Sunshine Law was written, the term ‘Internet’ hadn’t even been coined yet,” Weinberg said at the time she introduced the bills again. “The way we communicate with the world has changed so much since the original Open Public Meetings Act was enacted, and while the law may have been revolutionary for its time, the letter of the law doesn’t match the spirit of the law. Through this bill, we would be bringing the 20th Century’s most important government transparency legislation into the 21st Century, and would be able to realize the promise of open government for a new generation of New Jersey residents.”

Walter Luers, the top open public records lawyer in the state, said the push for open government Weinberg championed needs to become a reality.

“For years, Senator Weinberg worked to advance transparency in New Jersey by working on Open Public Records Act and Open Public Meetings Act reform. The Sunshine Law has not been updated since it was passed in the 1970s, and technology and the ways in which public entities operate and communicate have changed drastically since then,” Luers said. “The pandemic showed us how technology can increase access to meetings and records, especially through the use of commonly available video conferencing technology. The reforms sought by Senator Weinberg are still desperately needed today.”

Weinberg retired in January. So far no one in the Legislature has taken up her mantle on the issue. It is up to voters to demand that officials at the local, county, and state levels push for reform and provide more transparency to the people they serve. Contact your elected representatives and call on them to support transparency.

This editorial was published by Planet Princeton as part of U.S. Democracy Day, a nationwide collaborative reporting project aimed at highlighting threats and challenges to democracy in the United States. Learn more at usdemocracyday.org. Stories and editorials are being published all week to mark Democracy Day and highlight threats to democracy in the U.S.